EXHIBIT 10.1
SALE AND PURCHASE AGREEMENT
USPE HOLDINGS LIMITED
and
JENEBE INTERNATIONAL S.A.R.L.
and
DELPHIRICA INVESTMENTS S.A.R.L.
and
ALOSEM SOCIEDAD CIVIL
and
TESALIA SOCIEDAD CIVIL
and
CAPITAL STOCK S.C.R., S.A.
29 July 2004
CONTENTS
CLAUSE PAGE
1. INTERPRETATION..................................................................................... 5
2. OBLIGATION TO EVIDENCE AUTHORITY................................................................... 5
3. OBJECT OF THE AGREEMENT............................................................................ 6
4. SALE AND PURCHASE.................................................................................. 6
5. TERMS FOR COMPLETION............................................................................... 6
6. PRICE.............................................................................................. 6
7. ADJUSTMENT OF THE PRICE............................................................................ 7
8. POSITION OF PURCHASER.............................................................................. 7
9. COMPLETION......................................................................................... 8
10. USPI'S PERMANENCE.................................................................................. 9
11. SELLER'S WARRANTIES................................................................................ 10
12. PURCHASER'S WARRANTIES............................................................................. 11
13. OUTSTANDING SECURITY............................................................................... 11
14. CONFIDENTIALITY.................................................................................... 12
15. PAYMENT AND NOTICES................................................................................ 12
16. FURTHER ASSURANCES................................................................................. 14
17. GENERAL............................................................................................ 14
18. WHOLE AGREEMENT.................................................................................... 15
19. GUARANTEE BY THE GUARANTOR AND JOINT AND SEVERAL LIABILITY OF DELPHIRICA INVESTMENTS AND
JENEBE INTERNATIONAL............................................................................... 15
20. GOVERNING LAW AND ARBITRATION...................................................................... 15
SCHEDULE 1................................................................................................... 17
The Company.................................................................................................. 17
SCHEDULE 2................................................................................................... 18
The subsidiaries and Associated Companies.................................................................... 18
Part 1 - The Subsidiaries ................................................................................... 18
Part 2 - Associated Companies................................................................................ 30
SCHEDULE 3................................................................................................... 33
Seller's Warranties.......................................................................................... 33
SCHEDULE 4................................................................................................... 38
Limits on Warranty claims.................................................................................... 38
SCHEDULE 5................................................................................................... 42
Accounts..................................................................................................... 42
Part A - Completion Balance Sheet............................................................................ 42
Part B - Reference Balance Sheet............................................................................. 44
Part C - Specific Policies for the preparation of the Completion Balance Sheet............................... 46
Part D - Completion Price.................................................................................... 48
Part E - Balance sheet items for Completion Price Adjustment................................................. 52
SCHEDULE 6................................................................................................... 54
Purchaser Warranties......................................................................................... 54
SCHEDULE 7................................................................................................... 55
Pre-completion............................................................................................... 55
SCHEDULE 8................................................................................................... 58
Completion................................................................................................... 58
SCHEDULE 9................................................................................................... 60
Agreed form of Notarial Deed of Transfer..................................................................... 60
DATA ROOM DOCUMENTS.......................................................................................... 61
INTERPRETATION............................................................................................... 62
LIST OF EMPLOYEES............................................................................................ 69
1
THIS AGREEMENT is made in Madrid on 29 July 2004
BETWEEN:
(1) USPE HOLDINGS LIMITED, a company incorporated and existing in
accordance with the laws of England and Wales, with its registered
offices at 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx, and
registered with number 4338651 (the Seller), represented by Xx. Xxxxx
X. Xxxxx, of legal age, of U.S. nationality, resident at 0000 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxx 00000 and holder of passport number 000000000,
acting by virtue of the authority vested in him by the Board of
Directors of the company in its meeting of 28 July 2004, pending to be
notarised and apostilled;
(2) UNITED SURGICAL PARTNERS INTERNATIONAL, INC, a company incorporated
and existing in accordance with the laws of Delaware, United States,
with its registered offices at 15305 Dallas Parkway, Suite 1600 - LB
28, Xxxxxxx, XX 00000, with Federal Tax ID number 75-274976 (the
GUARANTOR), represented by Xx. Xxxxx X. Xxxxx, of legal age, of U.S.
nationality, resident at 0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxx 00000 and
holder of passport number 000000000, acting under an irrevocable
verbal mandate of the Guarantor;
(3) JENEBE INTERNATIONAL S.A.R.L., a company of Luxembourg nationality,
validly incorporated and existing under the laws of the Grand Duchy of
Luxembourg on 19 January 2001, with domicile at 00X xxxxxx Xxxx X.
Xxxxxxx, X-0000 Xxxxxxxxxx, registered with the Companies and
Commercial Registry under number RC B-80.602.
It is represented by Xx. Xxxx Xxxxxxx Xxxxxxxx, of legal age, married,
of Spanish nationality, resident in Luxembourg, Xxx xx Xxxxxxxx Xxxx
00, xxxx "carte de sejour" of Luxembourg number 198556-D. He acts in
his capacity as Managing Director, with authority to represent and
bind the company with his sole signature, in accordance with the
certificate issued by the Notary of Luxembourg Mr. Xxxxx-Xxxx-Xxxxxx
Xxxxxxxxxxx, on 5 May 2004, duly apostilled pursuant to the Hague
Convention.
(4) DELPHIRICA INVESTMENTS S.A.R.L., a company of Luxembourg nationality,
duly incorporated and validly existing under the laws of the Grand
Duchy of Luxembourg, on 19 January 2001, domiciled at 00X xxxxxx Xxxx
X. Xxxxxxx, X-0000 Xxxxxxxxxx, registered with the Companies and
Commercial Registry under number RC B-80.575.
It is represented by Xx. Xxxx Xxxxxxx Xxxxxxxx, of legal age, married,
of Spanish nationality, resident in Luxembourg, Xxx xx Xxxxxxxx Xxxx
00, xxxx "carte de sejour" of Luxembourg number 198556-D. He acts in
his capacity as Managing Director, with authority to represent and
bind the company with his sole signature, in accordance with the
certificate issued by the Notary of Luxembourg Mr. Xxxxx-Xxxx-Xxxxxx
Xxxxxxxxxxx, on 5 May 2004, and duly apostilled pursuant to the Hague
Convention.
(5) ALOSEM SOCIEDAD CIVIL, a company of Spanish nationality, domiciled in
Madrid, Xxxxx xx xx Xxxxxxxxxx 000, incorporated by means of a public
deed authorised by the Madrid Notary Public Mr, Fco. Xxxxxx Xxxxx xx
Xxxxxxxx y Xxxxx on 26 January 2001, under number 279 of his notarial
records. Its Tax Identification Number is G-82890427.
It is represented by Mr. Rafael Mate Xxxxxxxxx, of legal age, married,
resident in Madrid, with domicile to such effects in Xxxxx xx xx
Xxxxxxxxxx 000, and with Identity Card Number 51.053.814-R, in
accordance with the power arising from the deed of incorporation.
(6) TESALIA SOCIEDAD CIVIL, a company of Spanish nationality, domiciled in
Madrid, Xxxxx xx xx Xxxxxxxxxx 000, incorporated by means of a public
deed granted before the
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Madrid Notary public Mr. Fco. Xxxxxx Xxxxx xx Xxxxxxxx y Xxxxx and 11
January 2001, under number 82 of his corporate records. Its Tax
Identification Number is G-82888090.
It is represented by Mr. Rafael Mate Xxxxxxxxx and Xx. Xxxxxx Xxxxxxx
Xxxxxxx acting jointly, of legal age, married, resident in Madrid,
domiciled at Xxxxx xx xx Xxxxxxxxxx 000, and with Tax Identification
Number 51.053.814-R and 5.376.123-B, respectively, in accordance with
the power of attorney granted in the incorporation deed.
(7) CAPITAL STOCK S.C.R., S.A., of Spanish nationality, domiciled in
Madrid, Fortuny number 45, incorporated for an indefinite period of
time by means of a public deed authorised by the Madrid Notary Public
Mr. Fco. Xxxxxx Xxxxx xx Xxxxxxxx y Xxxxx, on 15 January 2001, under
number 137 of his corporate records; registered in the Commercial
Registry of Madrid under tomo 16160, folio 23, hoja M-273891. Its Tax
Identification Number is A-82879701. It is registered with the
Administrative Registry of Venture Capital Companies of the Spanish
National Stock Market Commission ("Comision Nacional del Xxxxxxx de
Valores") under number 51.
It is represented by Xx. Xxxxxx Xxxxxxx Xxxxxxx, of legal age,
married, with domicile for these purposes in Madrid, Xxxxx xx xx
Xxxxxxxxxx 000, and with National Identity Card number 5.376.123-B,
acting under the power of attorney granted in his favour by means of
the public deed granted before the Madrid Notary Public Mr. Francisco
Xxxxxx Xxxxx xx Xxxxxxxx y Xxxxx, on 15 January 2.001, under number
138 of his notarial records, registered under the third entry in the
Commercial Registry sheet of the Company
The Parties listed in (3) (7) to above shall be referred to as THE
INVESTMENT GROUP or THE PURCHASER)
BACKGROUND:
(A) United Surgical Partners Europe, S.L. (the Company) is a limited
liability company ("sociedad de responsabilidad limitada")
incorporated in Spain on 5 May 1998 by virtue of a public deed granted
on 5 May 1998 before the Madrid Notary Public Xx. Xxxxxx Xxxxxx
Xxxxxxx Xxxxx under number 1084 of his corporate records, under the
name of Comercial Walk Mil, S.L, with registered address at Xxxxx
Xxxxxx Xxxxx, 00, 0xx Xxxxx, Xxxxxx, Xxxxx, and being registered with
the Mercantile Register of Madrid, Volume 13115, Sheet 193, Section 8,
Page M-211991 and with Tax Identification Code X00000000. The capital
of the Company is on the date of this Agreement Euro 20,308,679.48
divided into 3,277,903 Class A Participations of Euro 6.01 each,
numbers 1 to 3,277,903 (inclusive), all of which are registered in the
name of the Seller (the Class A Participations or the Participations)
and 101,245 Class B participations of Euro 6.01 each, numbers
3,277,904 to 3,379,148 (inclusive), all of which are registered in the
name of the Management Members (Class B Participations) as defined
below.
(B) The Company owns and operates surgical facilities including private
surgical hospitals and walk-in surgical centres in Spain (including
well reputed centres such as Instituto Dexeus, Clinica Xxxxxxx Xxxxxxx
or Hospital San Xxxxxx, and certain development projects, such as that
affecting Instituto Dexeus) through the Subsidiaries and the
Associated Companies.
(C) Particulars of the Company and its Subsidiaries and Associated
Companies are set out in the schedules headed "The Company" and
"Subsidiaries and Associated Companies".
(D) The Seller has full legal title to all of the Class A Participations,
by virtue of the following:
- Participations sale and purchase deed entered into by USP
International Holdings Inc (as seller) and USPE Holdings
Limited (as buyer) and authorised on, 6 June 2002, by Notary
of Xxxxxx, Xxxxxx de la Fuente X'Xxxxxx.
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By means of this deed the Seller acquired 1,586,365
participations of the Company, numbered from 92,956 to
531,171, from 541,043 to 1,689,190 and number 1,689,191, all
of them inclusive, of E 6.010121 value each.
- Deed of amendment and of decrease of capital by means of
contributions' return authorised, on 6 June 2002, by Notary
of Xxxxxx, Xxxxxx de la Fuente X'Xxxxxx, under his protocol
number 667.
By means of this public deed the nominal value of all the
participations created then in the Company decreased to
E 6.01 each.
- Deed of capital increase authorised, on 27 December 2002, by
Notary of Xxxxxx, Xxxxxxxx de la Xxxxxx Xxxxxx, under his
protocol number 3,788.
By means of this public deed the Seller acquired 1,691,538
newly created participations in the Company, of E 6.01
value each, numbered from 1,689,192 to 3,380,729, both
inclusive.
- Deed of decrease of capital by means of amortisation of own
participatiosns authorised, on 27 December 2002, by the
Notary of Xxxxxx, Xxxxxxxx de la Xxxxxx Xxxxxx, under his
protocol number 3,789.
By means of this public deed, 102,826 participations of the
Company were amortised and the remaining capital was divided
in 3,277,903 participations of E 6.01 value each,
numbered from 92,956 to 531,171, from 541,043 to 1,689,190,
number 1,689,191 and from 1,689,192 to 3,380,729, all of
them inclusive, owned by the Seller (which became then the
sole member of the Company).
- Deed of capital increase, partial amendment of by-laws and
loosing of sole member condition authorised, on 27 June
2003, by the Notary of Xxxxxx, Xxxxxxxx de la Xxxxxx Xxxxxx,
under his protocol number 1,760.
By means of this public deed, the 3,277,903 participations
in which the capital was divided were renumbered so the
102,826 participations numbered from 3,277,904 to 3,380,729,
both inclusive, were given numbers 1 to 92,955 and 531,172
to 541,042, all of them inclusive.
Furthermore, 101,245 participations were created and assumed
by different individuals.
As consequence of this public deed, the capital of the
Company is on the date of this Deed Euro 20,308,679.48
divided into 3,277,903 Class A participations of Euro 6.01
each, numbers 1 to 3,277,903 (inclusive), all of which are
registered in the name of the Seller (the Participations as
defined above).
The Class A Participations represent a 97 % of the capital of the
Company.
(E) The Investment Group, in order to determine the merits of pursuing the
Transaction from an economical, financial, tax and legal point of
view, has carried out a due diligence based on copies of the due
diligence reports prepared by the Sellers' legal and financial
advisors referred to in the Disclosure Letter (the Vendor's Due
Diligence) and the analysis of certain of the documents made available
to the Purchaser in the Data Room (the Data Room Documents listed in
the Schedule "data room documents") located at the premises of the
Seller's legal and financial advisors offices on 8, 9, 12, 20 and 28
July 2004 with the guidance of its own professional advisors (the Due
Diligence).
(F) The Investment Group is a private equity investor with know-how and
expertise in the industrial sector in which the Transaction Companies
develop their businesses and it is
4
fully aware of the functioning of the Spanish market in this sector.
The Investment Group has been advised in relation to the Transaction
by professional advisors with expertise in these types of transactions
and in the field in which the Transaction Companies develop their
businesses.
(G) The Seller wishes to sell and the Investment Group wishes to purchase
all the Participations, on the terms set out in this Agreement.
NOW THEREFORE, the Investment Group and the Seller have agreed to enter into
this Agreement pursuant to the following
CLAUSES:
1. INTERPRETATION
1.1 In addition to terms defined elsewhere in this Agreement, the
definitions and other provisions in schedule headed "Interpretation"
apply throughout this Agreement, unless the contrary intention
appears.
1.2 In this Agreement, unless the contrary intention appears, a reference
to a clause or schedule is a reference to a clause or schedule to this
Agreement.
1.3 The headings in this Agreement do not affect its interpretation.
2. OBLIGATION TO EVIDENCE AUTHORITY
2.1 Xx. Xxxxx X. Xxxxx hereby declares that he is a duly authorised
representative of Seller and the Guarantor, under the laws applicable
to the Seller and the Guarantor in respect of capacity and hereby
undertakes to provide evidence of such authority in a form
satisfactory to the Notary formalising this Agreement.
2.2 The Notary shall be deemed to have received satisfactory evidence of
such authority if he receives (i) valid original powers of attorney
duly legalised and apostilled evidencing the authority of Xx. Xxxxx X.
Xxxxx to enter into this Agreement on behalf of the Seller and the
Guarantor prior to the date hereof or (ii) a ratification of this
Agreement by a duly authorised representative of the Seller and the
Guarantor whose authority is accredited by means of a valid original
power of attorney duly notarised and apostilled and, in both cases,
with any such other formalities as the Notary may require.
In the particular case of the Guarantor, it will be accepted that he
evidences his authority by means of any other document, provided that
a legal opinion issued by a well reputed law firm in Delaware, United
States, or with capacity to act in such State is attached, stating
that the signatory is duly authorised to give the guarantee provided
for hereunder.
2.3 When the Notary is deemed to have received satisfactory evidence of
Xx. Xxxxx X. Xxxxx'x authority to represent the Seller and the
Guarantor in accordance with the above, then the Notary shall deliver
the two bank cheques ("cheques bancarios") referred to in clause
6.2(a) to the Seller against acknowledgement of receipt to its entire
satisfaction by the Seller. Such delivery shall be made in favour of
the person authorised by the Seller to appear and produce the
corresponding power of attorney upon recognition by the Notary of such
authority.
2.4 If the action contemplated in clause 2.2 do not take place by 12
August 2004 then the Purchaser shall have the option to require the
specific performance of this provision or terminate this Agreement. In
any of these two cases the Notary shall return the cheques referred to
in 6.2(a) to the Purchaser. In case the Purchaser elects to require
specific performance, then the amount payable under 6.2(b) will be the
amount therein referred plus the six (6) million under 6.2(a) on
Completion.
5
3. OBJECT OF THE AGREEMENT
The object of this Agreement is:
(a) to provide for the sale and purchase of the Participations,
subject to the satisfaction of the terms for Completion
under clause 5; and
(b) to set out the rights and obligations of the Parties between
Signing Date and Completion, and also thereafter in relation
to certain matters arising out of this Agreement.
4. SALE AND PURCHASE
4.1 Subject to the satisfaction of the terms for Completion under clause
5, subject to clause 13, and in accordance with the terms of this
Agreement, the Seller hereby sells and the Investment Group hereby
purchases (directly or through an investment vehicle) the
Participations free from all charges, liens, encumbrances and claims
whatsoever and together with all rights attaching to them at
Completion (the Transaction).
4.2 The Seller undertakes that the Company shall not declare, pay or make
any dividends or distributions between the Signing Date and
Completion.
5. TERMS FOR COMPLETION
Completion of the Transaction and, therefore, the transfer of
ownership of the Participations will take place upon compliance by the
Seller with Clause 13 below not later than ninety (90) days since the
Signing Date provided that, between the Signing Date and Completion,
there has not occurred a Material Adverse Change. Material Adverse
Change means any event or circumstance (or any combination thereof),
which in the reasonable opinion of the Mandated Arranger has
materially adversely affected or could materially adversely affect,
during the period from the Signing Date to the Completion: (i) the
business, condition (financial or otherwise), operations, performance,
assets and rights of the Group Companies taken as a whole; (ii) the
performance, by the Group Companies taken as a whole, of their
relevant obligations to third parties, or (iii) the international or
the syndicated loan market in Spain when the relevant event or
circumstance is due to an exceptional cause of notorious magnitude
which could materially prejudice syndication of the Facilities.
For the avoidance of doubt, the Parties acknowledge and agree that
nothing in the above paragraph shall prejudice the Purchaser's right
to make Warranty Claims after Completion in the event of any material
adverse change in any Group Company that would not prevent Completion
from taking place because it does not entail a material adverse change
in the Group Companies taken as a whole.
6. PRICE
6.1 Price
The Price for the sale and purchase of the Participations shall be the
payment in cash by the Purchaser of the total sum of one hundred and
twelve million thirty eight thousand four hundred and sixty two
(112,038,462) Euro, payable in accordance with clause 6.2 (the Price)
and subject to the adjustment provided in clause 7 below.
6.2 Payment of Price
The Price shall be paid by the Purchaser to the Seller as follows:
(a) An amount equal to six million (6,000,000) Euro is hereby
delivered by the Investment Group, as advanced payment on
account of the Price by means of
6
banking cheques ("cheques bancarios nominativos") (the
Advanced Payment), which upon execution of this Agreement
shall be deposited with the Notary formalising this
transaction.
(b) At Completion the Purchaser shall deliver to the Seller the
remaining amount of the Price, this is, an amount equal to
one hundred and six million thirty eight thousand four
hundred and sixty two (106,038,462) Euro (the Payment at
Completion), as further provided for in the schedule headed
"Completion".
(c) If the Positive Price Adjustment is greater than Euro
250,000, within fifteen (15) Business Days following the
Determination Date, the Purchaser shall deliver to the
Seller an amount equal to the Positive Price Adjustment by
means of banking cheques or bank transfer to the account to
be indicated by the Seller, if possible value date
Completion date, and the Price shall be construed to mean in
this Agreement, other than in clauses 6 and 7, and amount
equal to the Price, as set out in clause 6.1, plus the
Positive Price Adjustment.
(d) If the Negative Price Adjustment is greater than Euro
250,000, within fifteen (15) Business Days following the
Determination Date, the Seller shall deliver to the
Purchaser an amount equal to the Negative Price Adjustment,
by means of banking cheques or bank transfer to the account
to be indicated by the Seller, if possible value date
Completion date, and the Price shall be construed to mean in
this Agreement, other than in clauses 6 and 7, and amount
equal to the Price, as set out in clause 6.1, less the
Negative Price Adjustment.
7. ADJUSTMENT OF THE PRICE
7.1 If the Completion Price, calculated in accordance with the schedule
headed "Completion Balance Sheet", is greater than the Price, as set
out in clause 6.1, then the Positive Price Adjustment shall be equal
to the difference between the Completion Price and the Price, as set
out in clause 6.1.
7.2 If the Completion Price, calculated in accordance with the schedule
headed "Completion Balance Sheet", is lower than the Price, as set out
in clause 6.1, then the Negative Price Adjustment shall be equal to
the difference between the Completion Price and the Price, as set out
in clause 6.1.
7.3 If either the Positive Price Adjustment or the Negative Price
Adjustment are equal or lower than Euro 250,000, then no Price
adjustment shall apply.
8. POSITION OF PURCHASER
8.1 The Purchaser acknowledges that details of the Participations and the
items owned or used by the Company and its Subsidiaries and Associated
Companies and their respective businesses have been made available to
it for inspection prior to the date of this Agreement during the Due
Diligence and that the Purchaser has been afforded an opportunity to
inspect them during the Due Diligence.
8.2 The Seller has specifically told the Purchaser that the Purchaser must
rely on the Purchaser's own opinion and/or professional advice
concerning the Participations and the items owned and used by the
Company and the Subsidiaries and Associated Companies and their
respective businesses pursuant to this Agreement, their quality, state
and condition, their fitness and/or suitability for any purpose, and
the possibility that some of them may have defects.
8.3 The Purchaser acknowledges that it has entered into this Agreement
having satisfied itself of all matters relating to it and without
reliance on any warranty or representation made by the Seller (apart
from clause 11 and the schedule headed "Seller's Warranties") or by
any person acting or purporting to act on behalf of the Seller.
7
8.4 No waiver by or on behalf of the Seller of any of the requirements of
this Agreement or any of its rights under this Agreement shall release
the Purchaser from full performance of the obligations stated in this
Agreement.
9. COMPLETION
9.1 Completion shall take place at the offices of the Seller's Lawyers at
10 a.m. on the tenth Business Day after the date on which the terms
for Completion set out in Clause 5 have been met, or at such other
time and on such other date as the Seller and the Purchaser may agree.
9.2 Pending Completion (and whether or not the terms for Completion set
out in Clause 5 are satisfied) the provisions of the schedule headed
"Pre-Completion" shall apply.
9.3 At Completion the Parties shall do or procure to be done those things
set out in the schedule headed "Completion" which will be deemed to
happen in a single act ("unidad de acto").
9.4 If Completion does not take place on the date set out in clause 9.1
above as a result of the Purchaser failing to comply fully with an
obligation under this clause 9 or the schedule headed "Completion",
the Seller may at its option (but without prejudice to any other right
or remedy it may have) by notice in writing to the Purchaser elect to:
(a) proceed to Completion in so far as reasonably practicable
and, in any case, without prejudice to its rights under this
Agreement;
(b) postpone the date for Completion to the first Business Day
on which the Seller reasonably believes that Completion may
happen or to such other date as may be agreed by the Parties
provided that such other agreed date shall be not longer
than one (1) month from the date set out in clause 9.1
above; or
(c) terminate this Agreement, in which case the Seller shall
keep the Advanced Payment as penalty clause ("clausula
penal"), without prejudice to any additional right to
damages.
If the Seller elects to postpone the date for Completion in accordance
with clause (b) above then the provisions of this Agreement shall
apply as if such postponed date were the date for Completion for all
purposes.
9.5 If Completion does not take place on the date set out in clause 9.1
above as a result of the Seller failing to comply fully with a
material obligation under clause 5, this clause 9 or the schedule
headed "Completion", the Purchaser may at its option (but without
prejudice to any other right or remedy it may have) by notice in
writing to the Seller elect to:
(a) proceed to Completion in so far as reasonably practicable
and, in any case, without prejudice to its rights under this
Agreement; or
(b) postpone the date for Completion to the first Business Day
on which the Purchaser reasonably believes that Completion
may happen or to such other date as may be agreed by the
Parties provided that such other agreed date shall be not
longer than one (1) month from the date set out in clause
9.1 above; or
(c) terminate this Agreement, in which case the Purchaser shall
recover the Advanced Payment and shall be entitled to
receive an amount equivalent to the Advance Payment as
penalty clause ("clausula penal"), without prejudice to any
additional right to damages.
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9.6 If the Purchaser elects to postpone the date for Completion in
accordance with clause (b) then the provisions of this Agreement shall
apply as if such postponed date were the date for Completion for all
purposes.
9.7 If Completion does not take place in accordance with Clause 5 for any
reason, and subject to clauses 9.4 and 9.5:
(a) except for this clause, clause 14 (Confidentiality), clause
15 (Payment and Notices), clause 16 (Further Assurances),
clause 17 (General) (except for clause 17.5), clause 18
(Whole Agreement) and clause 19 (Governing Law and
Arbitration), and the provisions of the clause and schedule
headed "Interpretation", all the other clauses of this
Agreement shall lapse and cease to have effect; but
(b) the lapsing of those provisions shall not affect any accrued
rights or liabilities of any Party.
9.8 Risk and ownership of all the Participations shall pass to the
Purchaser on Completion.
9.9 The Parties further agree that if the financing is not obtained for
reasons not attributable to the Purchaser, then the only consequence
will be that Completion will not take place and the Seller will keep
the Advanced Payment.
9.10 For the avoidance of doubt, if a Material Adverse Change occurs,
Completion shall not take place and the Seller shall return the
Advanced Payment to the Investment Group.
10. USPI'S PERMANENCE
10.1 The Parties have agreed that either the Seller or the Guarantor (for
these purposes, USPI) shall remain indirectly in the capital of the
Company and, to that effect, that it shall acquire, on Completion, 15%
of the capital ("USPI'S STAKE") of the vehicle that will be used to
acquire the Participations ("NEWCO") provided that USPI's stake does
not involve a contribution (including face value plus premium if
applicable in excess of twelve million four hundred thousand
(12,400,000) Euro USPI's Stake shall be acquired by USPI at the same
price as the Purchaser shall acquire (by means of purchase, capital
subscription, contribution or otherwise) Newco's shares or
participations (the Newco Investment Price). The voting and
pre-emption rights ("Derechos xx xxxxxxxx o adquisicion preferente")
attached to USPI's Stake shall be assigned to the Investment Group on
Completion in the most effective manner, and this circumstance shall
be regulated in the corresponding shareholders' or members' agreement.
10.2 During the permanence of USPI in the capital of Newco, USPI shall not
(directly or indirectly) (i) carry out any activity or participate or
have an interest in any business or company that competes with the
Group Companies within the geographic area in which the Group
Companies operate currently or in the future (excluding the U.S. and
the U.K.) or (ii) approach any of the employees, officers directors or
managers of the Group Companies offering a position, contract or
employment, or contract with or give a position to any such employees,
officers, directors or managers (in this latter case, except where
such contract or position is entered into or given in the context of a
recruitment process carried out through newspapers announcements,
internet announcements or magazine announcements, addressed to the
general public).
10.3 Also on Completion, USPI shall grant a call option over USPI's stake
in favour of the Investment Group (the Call Option), that shall be
exercisable within 90 days after the second anniversary of Completion,
and in compensation the Investment Group shall grant a put option in
favour of the Seller (the Put Option) that shall also be exercisable
90 days after the second anniversary of Completion. The exercise price
of both the Call Option and the Put Option shall be the Newco
Investment Price paid by USPI, increased at a yearly compound interest
rate of 3-month Euribor plus a margin of 1.5%. Payment of the price
9
of the Call Option shall be guaranteed by the Investment Group by
means of a bank guarantee ("aval bancario") to be issued by a Spanish
bank to the reasonable satisfaction of the Seller and to be delivered
to the Seller on Completion pursuant to the Schedule headed
"Completion". The Parties shall establish an expeditious mechanism for
the exercise of the Call Option and the Put Option, so that the
transfer of USPI's Stake is automatic upon exercise of, and payment
for, the relevant Option. The shareholder's agreement referred to in
10.1 above shall provide that the Call Option and the Put Option shall
be exercisable over any shares, participations or rights that may
succeed USPI's Stake as a consequence of capital decreases,
transformation, merger or other corporate restructuring in the
understanding that the exercise price of the Call Option and the Put
Option shall be as provided for in this clause 10.3 provided, however,
that to the extent USPI receives any compensation as a consequence of
such capital decrease, transformation, merger or other corporate
restructuring the amount of such compensation shall be deducted from
the price of the Call Option or the Put Option (as the case may be) in
accordance with this clause 10.3.
11. SELLER'S WARRANTIES
11.1 The Seller warrants to the Purchaser that, except as "Disclosed" to
the Purchaser, each of the Warranties made by the Seller set out in
this clause 11 and the schedule headed "Seller's Warranties" is and
will be as of Completion true and accurate in all material respects
and not misleading, and undertakes to indemnify and hold the Purchaser
harmless from any Damages arising out of any such statements not being
true or accurate or being misleading (Breach of Warranties).
Disclosed means:
(a) a problem or contingency identified in the Disclosure Letter
(which includes specific disclosures and the Vendor's Due
Diligence) or information in the Disclosure Letter that
renders a specific Warranty untrue
(b) a problem or contingency identified in the Data Room, in
this latter case only to the extent that the Data Room
Documents would have led an independent third party to know
that any of the Warranties was not true and accurate or was
misleading,
In this respect, the Seller represents and warrants to the Purchaser
that as far as the Seller is aware there is nothing in the Data Room
Documents that should have been Disclosed but is not the subject of a
specific disclosure in the Disclosure Letter or is not disclosed in
the Vendor's Due Diligence. For the avoidance of doubt, the liability
of the Seller for Breach of Warranties (this is, for matters not
Disclosed) shall only be subject to the limits set out in Schedule 4
("Limits on Warranty Claims") on this clause 11 but not limited in any
other manner.
11.2 Each of the Warranties set out in the several paragraphs of the
schedule headed "Seller's Warranties" is separate and independent and,
except as expressly provided to the contrary in this Agreement, is not
limited by reference to any other paragraph of that schedule or by
anything in this Agreement.
11.3 The liability of the Seller in connection with the Warranties shall be
subject to the limitations contained in, and to the other provisions
of, the schedule headed "Limits on Warranty Claims" and any Warranty
Claim shall be subject to the provisions of that schedule.
11.4 Any payment made by the Seller in respect of a Breach of the
Warranties shall, to the extent possible, be deemed to be a reduction
in the Price.
11.5 The Purchaser shall only be entitled to make a claim of any type or
nature under or in connection with this Agreement to the Seller
pursuant to the provisions of this clause
10
(save with respect to claims relating to (i) the Adjustment of the
Price, which shall be dealt with in accordance with clause 7 and the
schedule headed "Completion Balance Sheet", (ii) Seller's obligations
under the schedules headed "pre-completion" and "Completion", (iii)
Seller's liabilities under clause 9.5(c), and clauses 10, 13 (which
shall be dealt with in accordance with clause 9.5(c), 14, 15, 16, 17,
and 18).
11.6 The Seller hereby agrees to fully indemnify and hold the Purchaser
harmless, regardless of any other provision or Disclosure in this
Agreement, in relation to any Damages arising from matter that has
occurred before Completion and results in:
(a) any tax contingency affecting the Group Companies
(b) any labour contingency affecting the Group Companies (save
for the potential labour condition of some medical personnel
who renders services to the Group Companies identified in
the Vendor's Due Diligence)
(c) any contingency adversely affecting ownership over the
Participations or the shares or participaciones of the
Subsidiaries.
(d) None of the Group Companies not being the holder of all
exploitation rights ("derechos de explotacion") over the AHM
Software world-wide and for the whole term of their legal
protection.
(e) the net worth of the Group Companies that are under a
dissolution cause not having been restored by Completion.
Claims under this provision shall be dealt with, mutatis mutandi, in
all cases as Warranty Claims and, therefore, subject to the provisions
of this clause and the schedule headed "Limit on Warranties" provided,
however, that claims for any contingency adversely affecting ownership
over the Participations or the shares or quotas of the Subsidiaries
shall not be subject to any limitations, including the exclusions,
financial limits, time limits or other limitations whatsoever.
12. PURCHASER'S WARRANTIES
12.1 The Purchaser warrants to the Seller that each of the statements set
out in the schedule headed "Purchaser's Warranties" is and will be as
of Completion true, accurate and not misleading, and undertakes to
indemnify and hold the Seller harmless from any such statements not
being true and accurate or being misleading.
12.2 Each of the warranties set out in the several paragraphs of the
schedule headed "Purchaser's Warranties" is separate and independent
and, except as expressly provided to the contrary in this Agreement,
is not limited by reference to any other paragraph of that schedule or
by anything in this Agreement.
13. OUTSTANDING SECURITY
13.1 The Seller undertakes that at Completion any existing pledge over the
Participations and over the shares and participations of the
Subsidiaries shall be cancelled on or before Completion as set out in
the schedule headed "Completion".
13.2 The Seller undertakes that any security existing over any Group
Companies' assets shall be cancelled (both economically and formally,
provided that registration with the relevant registry shall not be
necessary) on or before Completion, except the mortgage existing over
the Marbella Hospital.
11
14. CONFIDENTIALITY
14.1 Neither the Seller nor the Purchaser shall make (or permit any other
member of the Seller's Group or the Purchaser's Group to make) any
announcement concerning this Transaction, this Agreement or any
ancillary matter before, on or after Completion.
14.2 The Purchaser shall and shall procure that:
(a) each member of the Purchaser's Group (from time to time)
shall keep confidential all information provided to it by or
on behalf of the Seller or otherwise obtained by or in
connection with this Agreement which relates to any member
of the Seller's Group; and
(b) if after Completion any Group Company holds confidential
information relating to the Seller's Group, it shall keep
that information confidential and, to the extent reasonably
practicable, shall return that information to the Seller or
destroy it, in each case without retaining copies.
14.3 The Seller shall and shall procure that:
(a) the Seller's Group shall keep confidential all information
provided to it by or on behalf of the Purchaser or otherwise
obtained by or in connection with this Agreement which
relates to any member of the Purchaser's Group; and
(b) if after Completion the Seller holds confidential
information relating to any Group Company, it shall keep
that information confidential and, to the extent reasonably
practicable, shall return that information to the Purchaser
or destroy it, in each case without retaining copies.
14.4 Nothing in this clause prevents any announcement being made or any
confidential information being disclosed:
(a) with the written approval of the other Party, which in the
case of any announcement shall not be unreasonably withheld
or delayed; or
(b) to the extent required by law (including US securities
laws), any non-legally binding agreement with a Trade Union
or any competent regulatory body (including the requirements
of the NASDAQ National Stock Market), but a Party required
to disclose any confidential information shall promptly
notify the other Party, where practicable and lawful to do
so, before disclosure occurs and co-operate with the other
Party regarding the timing and content of such disclosure or
any action which the other Party may reasonably elect to
take to challenge the validity of such requirement.
14.5 Nothing in this clause prevents disclosure of confidential information
by any Party:
(a) to the extent that the information is in or comes into the
public domain other than as a result of a breach of any
undertaking or duty of confidentiality by that Party; or
(b) to that Party's professional advisers, auditors or bankers,
but before any disclosure to any such person the relevant
Party shall procure that he is made aware of the terms of
this clause and shall use its best endeavours to procure
that such person adheres to those terms as if he were bound
by the provisions of this clause.
15. PAYMENT AND NOTICES
15.1 All payments to be made under this Agreement shall be made in full
without any set-off or counterclaim and free from any deduction or
withholding save as may be required by law,
12
in which event such deduction or withholding shall not exceed the
minimum amount which it is required by law to deduct or withhold.
15.2 If any amount required to be paid under this Agreement is not paid
when it is due, such amount shall bear interest at the rate of 3-month
Euribor plus 2 % per annum, calculated on a daily basis for the period
from the relevant due date for payment up to and including the date of
actual payment, before and after any judgement.
15.3 Any notice given in connection with this Agreement must be in English
unless the document is a statutory or other official document in which
case, if required by the Seller, it shall be accompanied by an English
translation.
15.4 Any notice or other formal communication given under this Agreement
must be in writing (which does not include e-mail) and may be
delivered, faxed or sent by overnight courier to the Party to be
served at its fax number or address appearing in this clause or at
such other fax number or address as it may have notified to the other
Party in accordance with this clause. If sent by fax, it must be
followed by a hardcopy by courier or its receipt acknowledged by the
other Party.
15.5 Any notice or other formal communication shall be deemed to have been
given:
(a) if delivered, on the day of delivery; or
(b) if faxed before 17.00 in the place of receipt, on the day
faxed or, otherwise, on the day after it was faxed; or
(c) if sent by overnight courier, at 10.00 a.m. on the day after
it was sent,
provided that if such day is not a Business Day, such notice shall be
deemed to have been given on the next Business Day.
15.6 In proving service of a notice or other formal communication it shall
be sufficient to prove that delivery was made, a fax transmission
report was obtained or that the envelope containing the communication
was properly addressed and couriered.
15.7 Any notice sent to the Purchaser shall be sent to:
Address: Xxxxx xx xx Xxxxxxxxxx 000, 0(x), 00000
Xxxxxx
Fax number: x00 00 0000000
For the attention of: Xxxxxx Xxxxxxx / Xxxxx Xxxx / Xxxxxx Mate
Xxxxxxxxx
with copy to:
Address: Ashurst, X/ Xxxxxx 00 - 0 xxxxxxx, 00000
Xxxxxx
Fax number: x00 00 0000000/02
For the attention of: Xxxxx Xxxxxxxxx
and any notice sent to the Seller shall be sent to:
Address: 00000 Xxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx
Xxxxx 00000
Fax number: (000) 000 00 00
For the attention of: Chief Executive Officer
with copy to:
Address: Xxxxx & Xxxxx, Xxxxx xx Xxxxxxxx, 00, 00000
Xxxxxx, Xxxxx
Fax number: x00 00 000 0000
For the attention of: Xxxxxxxx Xxxxxxxx and Xxxx Xxxxxxx Xxxxxxx
Dafos
13
16. FURTHER ASSURANCES
All Parties shall, so far as reasonably able, do or procure all things
as may be required to give effect to this Agreement, including,
without limitation, the execution of all deeds and documents,
procuring the convening of all meetings, the giving of all necessary
waivers and consents and the passing of all resolutions and otherwise
exercising all powers and rights available to them.
17. GENERAL
17.1 Each of the obligations, Warranties, limitations on Warranty Claims
and undertakings set out in this Agreement which is not fully
performed at Completion will continue in force after Completion.
17.2 None of the rights or obligations under this Agreement may be assigned
or transferred without the prior written consent of the other Party,
which shall not be unreasonably withheld or delayed, provided,
however, that the Purchaser shall in any event be entitled to assign
its rights and obligations hereunder (i) to Newco; (ii) in the event
of a transfer of the Company or its Subsidiaries, or any other
restructuring, within the Purchaser's Group, or (iii) for purposes of
obtaining or securing financing related to the purchase of the Company
or as a consequence of the enforcement of security taken in relation
to such financing.
17.3 Save as otherwise provided in this Agreement, each Party shall pay the
costs and expenses incurred by it in connection with the entering into
and completion of this Agreement provided that the Purchaser shall
bear and pay all notarial costs in connection with the notarisation of
the Agreement and documents connected with the transfer of the
Participations provided for hereunder.
17.4 This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same agreement and
any Party may enter into this Agreement by executing a counterpart.
17.5 The Purchaser agrees to provide the Seller, any other member of the
Seller's Group, and their representatives and advisers on not less
than 5 (five) days' notice and during normal business hours with full
and free access (including the right to take copies) to the books of
accounts and other financial records of the Company (subject to the
Seller keeping such books and records confidential) which relate to
the period up to Completion as the Seller, or any other member of the
Seller's Group may reasonably request for the purpose of reviewing its
statutory accounts or any computation or return relating to Tax or as
may be required by any Tax Authority. The Purchaser further agrees for
the same purposes to give the Seller and any other member of the
Seller's Group and their representatives and advisers reasonable
access to its employees (including the employees of the Group
Companies) and to respond to reasonable requests for the information
related to the above-mentioned period. In reciprocity, the Seller
agrees to facilitate the Purchaser any information or assistance in
relation to the fiscal years preceding this Agreement which may impact
the taxation of the Purchaser after Completion.
17.6 This Agreement has been prepared and signed in English. The Parties
agree that there will be a translation into Spanish to be prepared by
the Purchaser by Completion. In the event of any discrepancy, the
English version shall prevail.
17.7 If any provision of this Agreement is held to be illegal, invalid or
unenforceable in whole or in part the legality, validity and
enforceability of the remaining provisions of this Agreement shall not
in any way be affected or impaired thereby, and the Parties shall
negotiate in good faith to replace the offending provision by another
enforceable, valid and legal provision that has the same or a similar
as possible effect on the transactions hereby contemplated as the
original provision.
14
17.8 The rights of each Party under this Agreement:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of rights and remedies
provided by law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver
of that right.
18. WHOLE AGREEMENT
18.1 This Agreement and the documents referred to in it contain the whole
agreement between the Parties relating to the transactions
contemplated by this Agreement and supersede all previous agreements
between the Parties relating to these transactions.
18.2 Each Party acknowledges that in agreeing to enter into this Agreement
it has not relied on any representation, warranty, collateral contract
or other assurance (except those set out in this Agreement and the
documents referred to in it) made by or on behalf of any other Party
before the signature of this Agreement. Each Party waives all rights
and remedies which, but for this clause, might otherwise be available
to it in respect of any such representation, warranty, collateral
contract or other assurance, provided that nothing in this clause
shall limit or exclude any liability for gross negligence ("culpa
grave") or wilful misconduct ("dolo").
19. GUARANTEE BY THE GUARANTOR AND JOINT AND SEVERAL LIABILITY OF
DELPHIRICA INVESTMENTS AND JENEBE INTERNATIONAL
19.1 The Guarantor hereby guarantees to the Investment Group (and, in turn,
the Purchaser) the Seller's Warranties and the obligations and
indemnity commitments assumed by the Seller hereunder. This guarantee
is given on a joint and several basis with the obligations of the
Seller, with an express waiver of the right to force the creditor to
make use of legal remedies against the debtor before having recourse
against this guarantee ("beneficio de excusion").
19.2 Delphirica Investments S.a.r.l and Jenebe International S.a.r.l. shall
be liable for the obligations arising out of this Agreement for all of
the Investment Group jointly and severally and guarantee jointly and
severally the obligations of Alosem, S.C., Tesalia, S.C. and Capital
Stock S.C.R., S.A.
20. GOVERNING LAW AND ARBITRATION
20.1 This Agreement is governed by and shall be construed in accordance
with Spanish law.
20.2 Any dispute which arises or occurs between the Parties in relation to
any thing or matter arising out of or in connection with this
Agreement shall be finally settled under the Rules of Arbitration of
the International Chamber of Commerce by three arbitrators, one
nominated by the Seller and other by the Investment Group each Party
and the third, who shall be the chairman, selected by the two
appointed arbitrators or, failing agreement, nominated by the chairman
(from time to time) of the Court of Arbitration of the International
Chamber of commerce. The place of the arbitration will be Geneva
although hearings may be held elsewhere and they will be conducted in
the English language. Arbitrators shall be licensed to practice
Spanish law.
15
AS WITNESS whereof this Agreement has been entered into the day and year first
above written and is executed in two counterparts.
USPE HOLDINGS LIMITED JENEBE INTERNATIONAL S.A.R.L.
________________________________ ________________________________
SIGNED ON ITS BEHALF BY: SIGNED ON ITS BEHALF BY:
DELPHIRICA INVESTMENTS S.A.R.L. ALOSEM SOCIEDAD CIVIL
________________________________ ________________________________
SIGNED ON ITS BEHALF BY: SIGNED ON ITS BEHALF BY:
TESALIA SOCIEDAD CIVIL CAPITAL STOCK S.C.R., S.A.
________________________________ ________________________________
SIGNED ON ITS BEHALF BY: SIGNED ON ITS BEHALF BY:
16
SCHEDULE 1
THE COMPANY
Company name: United Surgical Partners Europe, S.L.
Mercantile Registry details: Volume 13,115, Section 8 and Page
number M-211991
Mercantile Registry of Madrid
Tax identification code: B/82027566
Registered office: Xxxxxx Xxxxx 00, 0xx Xxxxx, Xxxxxx,
Xxxxx
Date and place of formation: 5 May 1998 - Madrid, Spain
Directors: Xxxxxxx Masfurroll Lacambra (Chairman
and Managing Director)
Xxxxxx X. Xxxxx
Xxxxxxx Xxxxx Xxxxx (Vice Chairman)
Xxxxxxx X. Xxxxxx
Xxxxxx Xxxxxxx Scokin
Secretary: Xxxxx Xxxxxxx Xxxxx Xxxxxxxx
(Secretary)
Xxxxxxx Xxxxx Xxxxx (Vice Secretary)
Accounting reference date: 31 December
Auditors: KPMG auditores, S.L.
Capital: E 20,308,679.48
Participations: 3,379,148
Stake held by the Seller's Group: 97%
17
SCHEDULE 2
THE SUBSIDIARIES AND ASSOCIATED COMPANIES
PART 1 - THE SUBSIDIARIES
1. BRUBA ADVANCE COMP. S.L. (SOCIEDAD UNIPERSONAL)
Mercantile Registry details: Volume 34,796, Folio 108 and Page
number B-25, 0307
Mercantile Registry of Barcelona
Tax identification code: B/62940549
Registered office: Xxxxxxx Xxxxxxxx 000, Xxxxxxxx X,
0 xxxxxxx, 0xx Xxxxx, Xxxxxxxxx, Xxxxx
Date and place of formation: 23 July 2002 - Barcelona, Spain
Directors: Instituto Dexeus (represented by
Xxxxxxx Xxxxxx Xxxxxxx) (sole director)
Secretary: N/A
Accounting reference date: 31 December
Auditors: N/A
Capital: E 3,006
Participations: 3,006
Stake held by the Seller's Group: 100%
2. CLINICA MATERNAL NUESTRA SENORA DE LA XXXXXXXXX, S..A (SOCIEDAD
UNIPERSONAL)
Mercantile Registry details: Volume 487, Folio 110 and Page number
VI-1367
Mercantile Registry of Alava
Tax identification code: A/01006790
Registered office: Xxxxxxxxx 0, Xxxxxxx, Xxxxx
Date and place of formation: 19 May 1970 - Vitoria, Spain
Directors: Xxxxxxx Masfuroll Lacambra (Chairman)
Xxxx Xxxxx Xxxxx del Molino (Vice
Chairman)
United Surgical Partners Europe, S.L.
(represented by Xxxx Xxxxx Xxxxx
Xxxxxxxx) (Managing Director)
18
Xxxxxxx Xxxxx Xxxxx
Xxxxxx Xxxxxxx Scokin
Secretary: Xxxxx Xxxxxxx de las Xxxxx (Secretary)
Xxxxxxxx Xxxxxxx Xxxxx (Vice Secretary)
Accounting reference date: 31 December
Auditors: KPMG auditores, S.L.
Capital: E 116,259.78
Shares: 19,344
Stake held by the Seller's Group: 100%
3. CLINICA XXXXXXX XXXXXXX, X.X. (SOCIEDAD UNIPERSONAL)
Mercantile Registry details: Volume 2,907, Folio 1, Page number
SE-37,360
Mercantile Registry of Sevilla
Tax identification code: B/41992215
Registered office: Xxxxxxx Xxxxxx Xxxxxx 00, Xxxxxxx,
Xxxxx
Date and place of formation: 20 May 1999 - Sevilla, Spain
Directors: United Surgical Partners Europe, S.L.
(represented by Xxxxx Xxxxxxx Xxxxxxx)
(Managing Director)
Xxxxxxx Xxxxx Xxxxx (Vice Chairman)
Xxxxxxx Masfurroll Xxxxxxxx (Chairman)
Xxxxxx Xxxxxxx Scokin
Secretary: Xxxx Xxxxx Xxxxx del Molino (Secretary)
Xxxxx Xxxxxxx de las Xxxxx (Vice
Secretary)
Accounting reference date: 31 December
Auditors: KPMG auditores, S.L.
Capital: E 4,433,704
Participations: 4,433,704
Stake held by the Seller's Group: 100%
4. DIAGNOSTICOS Y TRATAMIENTOS MEDICOS, S.A.
Mercantile Registry details: Volume 31,399, Folio 122, Page number
B-
19
146,806
Mercantile Registry of Barcelona
Tax identification code: A/58306036
Registered office: Xxxxx xx xx Xxxxxxxx 00, Xxxxxxxxx,
Xxxxx
Date and place of formation: 30 December 1986 - Barcelona, Spain
Directors: Xxxxxxx Xxxxxx Xxxxxxx (Chairman)
Consultorio Dexeus, S.A. (represented
by Xxxxxx Xxxxxxxx Xxxxxxxxx)
Secretary: Xxxx Xxxxx Xxxxx del Xxxxxx (Secretary)
Xxxxx Xxxxxxx de las Xxxxx
(Vice-Secretary)
Accounting reference date: 31 December
Auditors: N/A
Capital: E 324,000
Shares: 180,000
Stake held by the Seller's Group: 76.94%
5. HOSPITALIZACION Y SERVICIOS, S.A.
Mercantile Registry details: Volume 1,774, Folio 91, Page number
SE-14302
Mercantile Registry of Sevilla
Tax identification code: A/41033861
Registered office: Xxxxxxx Xxxxxx Xxxxxx 00, Xxxxxxx,
Xxxxx
Date and place of formation: 27 August 1973 - Sevilla, Spain
Directors: United Surgical Partners Europe, S.L.
(represented by Xxxx Xxxxx Xxxxx del
Molino)
Clinica Xxxxxxx Xxxxxxx, X.X. (Sociedad
Unipersonal)
(represented by Xxxxxx Xxxxx Xxxxx)
Both are joint and several directors
Secretary: N/A
Accounting reference date: 31 December
Auditors: N/A
Capital: E 60,101.21
20
Shares: 95,158
Stake held by the Seller's Group: 98%
6. INSTITUTO POLICLINICO SANTA TERESA, S.A.
Mercantile Registry details: Volume 2,244, Section 8, Folio 17, Page
number C-2,142
Mercantile Registry of La Coruna
Tax identification code: A/15015647
Registered office: Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxx
Xxxxxxxxxxxx 0, Xx Xxxxxx, Xxxxx
Date and place of formation: 2 July 1968 - La Coruna, Spain
Directors: Xxxxxxx Masfurroll Xxxxxxxx (Chairman)
Xxxx Xxxxx Xxxxx del Molino (Vice
Chairman)
Xxxxxxx Xxxxx Xxxxx
United Surgical Partners Europe, S.L.
(represented by Xxxx Xxxxx Xxxxx
Xxxxxxxx) (Managing Director)
Xxxxxx Xxxxxxx Scokin
Secretary: Xxxxx Xxxxxxx de las Xxxxx (Secretary
and Legal Counsellor)
Xxxx Xxxx Xxxxxxx Xxxxxxxx (Vice
Secretary)
Accounting reference date: 31 December
Auditors: KPMG auditores, S.L.
Capital: E 955,609.25
Shares: 31,800
Stake held by the Seller's Group: 95.89%
7. OBRAS USP XXXXXX, X.X. (SOCIEDAD UNIPERSONAL)
Mercantile Registry details: Volume 18,062, Folio 109, Page number
M-312,312
Mercantile Registry of Madrid
Tax identification code: B/83417089
Registered office: Xxxx Xxxxx 00, Xxxxxx, Xxxxx
Date and place of formation: 1 October 2002 - Madrid, Spain
21
Directors: Gemma Xxxxxx Xxxxxxx de las Xxxxx
Xxxxxxx Xxxxxx Xxxxxx
Both are joint and several directors
Secretary: N/A
Accounting reference date: 31 December
Auditors: N/A
Capital: E 3,006
Participations: 600
Stake held by the Seller's Group: 100%
8. RESONANCIA NUCLEAR MAGNETICA SANTA XXXXXX, X.X.
Mercantile Registry details: Volume 920, Folio 77, Page number
C-2,688
Mercantile Registry of La Coruna
Tax identification code: B/15329535
Registered office: Xxxxxxxxxxxx 0, Xx Xxxxxx, Xxxxx
Date and place of formation: 6 April 1991 - La Coruna, Spain
Directors: Xxxxxxx Masfurroll Xxxxxxxx (Chairman)
Xxxx Xxxxx Xxxxx del Xxxxxx
Xxxxxxx Xxxxx Xxxxx
United Surgical Partners Europe, S.L.
(represented by Xxxx Xxxxx Xxxxx
Xxxxxxxx) (Managing Director)
Xxxxxx Xxxxxxx Scokin
Secretary: Xxxxxx Xxxxx Xxxxxxx (Secretary)
Xxxx Xxxx Xxxxxxx Xxxxxxxx (Vice
Secretary)
Accounting reference date: 31 December
Auditors: N/A
Capital: E 480,809.68
Participations: 8,000
Stake held by the Seller's Group: 90.69%
9. UNITED SURGICAL PARTNERS BARCELONA, S.L.
22
Mercantile Registry details: Volume 29,961, Folio 53, Page number
B-144,030
Mercantile Registry of Barcelona
Tax identification code: B/61055992
Registered office: Xxxxxxx Xxxxxxxx 000, Xxxxxxxx X,
0 xxxxxxx 0xx, Xxxxxxxxx, Xxxxx
Date and place of formation: 14 February 1996 - Barcelona, Spain
Directors: Xxxxxxx Masfurroll Xxxxxxxx (Chairman)
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxx Xxxxx Xxxxx del Xxxxxx
Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxx Xxxxx Xxxxx
Secretary: Xxxxx Xxxxxxx de las Xxxxx
Accounting reference date: 31 December
Auditors: N/A
Capital: E 5,241,912
Participations: 873,652
Stake held by the Seller's Group: 99,99%
10. UNITED SURGICAL PARTNERS COSTA DEL SOL, S.L.
Mercantile Registry details: Volume 3,407, Folio 163, Page number
MA-66,143
Mercantile Registry of Malaga
Tax identification code: B/83574921
Registered office: Xxxxxxx Xxxxxx Xxxxx 00, Xxxxxxxx,
Xxxxxx, Xxxxx
Date and place of formation: 25 Feburary 2003 - Sevilla, Spain
Directors: United Surgical Partners Europe, S.L.
(represented by Xxxxxxx Xxxxx Xxxxx)
(Managing Director)
Xxxxx Pellise Xxxxxxx (Vice Chairman)
Xxxxxxx Masfurroll Xxxxxxxx (Chairman)
23
Xxxxxxxx Xxxx Casger
Secretary: Xxxxx Xxxxxxx de las Xxxxx (Secretary)
Xxxxx Xxxx Xxxxx (Vice Secretary)
Accounting reference date: 31 December
Auditors: N/A
Capital: E 503,006
Participations: 503,006
Stake held by the Seller's Group: 100%
11. UNITED SURGICAL PARTNERS DEXEUS CENTRO DE SALUD DE LA MUJER, S.L.
(SOCIEDAD UNIPERSONAL)
Mercantile Registry details: Volume 2,024, Folio 143, Page number
MU-43,516
Mercantile Registry of Murcia
Tax identification code: B/83650135
Registered office: Xxxxxxx Xxxx xx Xxxxxx x/x xxxxxx xxxx
Xxxxxx, Xxxxxxxx "Xxxxxx Xxxxxxxxxxxx",
Xxxxxx, Xxxxx
Date and place of formation: 9 May 2003 - Barcelona, Spain
Directors: Xxxxxxx Masfurroll Xxxxxxxx (Chairman)
Xxxxxxx Xxxxx Xxxxx (Vice Chairman)
United Surgical Partners Europe, S.L.
(represented by Xxxx Xxxxx Xxxxx
Xxxxxxxx) (Managing Director)
Xxxxx Xxxxxxxxx Xxxxxxx
Secretary: Xxxx Xxxxx Xxxxx del Molino (Secretary)
Xxxxx Xxxxxxx de las Xxxxx (Vice
Secretary)
Accounting reference date: 31 December
Auditors: N/A
Capital: E 3,006
Participations: 3,006
Stake held by the Seller's Group: 100%
24
12. UNITED SURGICAL PARTNERS HOSPITAL DE MARBELLA, S.L. (SOCIEDAD
UNIPERSONAL)
Mercantile Registry details: Volume 3,407, Folio 175, Page number
MA-66,144
Mercantile Registry of Malaga
Tax identification code: B/83574905
Registered office: Xxxxxxx Xxxxxx Xxxxx 00, Xxxxxxxx,
Xxxxxx, Xxxxx
Date and place of formation: 25 February 2003 - Barcelona, Spain
Directors: United Surgical Partners Europe, S.L.
(represented by Xxxxx Xxxxxxx Xxxxxxx)
Xxxxxxx Masfurroll Xxxxxxxx (Chairman)
Xxxx Xxxxx Xxxxx Xxxxxxxx (Vice
Chairman)
Xxxxxx Xxxxx Xxxxx
Xxxxxx Xxxxxxx Scokin
Secretary: Xxxx Xxxxx Xxxxx del Molino (Secretary)
Xxxxx Xxxxxxxx Xxxxx (Vice Secretary)
Accounting reference date: 31 December
Auditors: N/A
Capital: E 3,006
Participations: 3,006
Stake held by the Seller's Group: 100%
13. UNITED SURGICAL PARTNERS XXXXXX, X.X.
Mercantile Registry details: Volume 14,763, Section 8, Page number
M-245,184
Mercantile Registry of Madrid
Tax identification code: B/82452236
Registered office: Xxxx Xxxxx 00, Xxxxxx, Xxxxx
Date and place of formation: 24 September 1999 - Madrid, Spain
Directors: Xxxxxxx Masfuroll Lacambra (Chairman)
Xxxxxxx Xxxxx Xxxxx (Vice Chairman)
Xxxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxx Xxxxx Xxxxxxxx
25
United Surgical Partners Europe, S.L.
(represented by Xxxx Xxxxxxx Arqued
Xxxxxxxxx) (Managing Director)
Secretary: Xxxxx Xxxxxx Xxxxx xx Xxxxx (Secretary)
Xxxxxx Xxxxx Xxxxxxx (Vice Secretary)
Accounting reference date: 31 December
Auditors: KPMG Auditores, S.L.
Capital: E 1,777,313
Participations: 1,777,313
Stake held by the Seller's Group: 93.34%
14. U.S.P. DERMOESTETICA, S.L.
Mercantile Registry details: Volume 13,942, Section 8, Page number
M-228,397
Mercantile Registry of Madrid
Tax identification code: B/82260829
Registered office: Xxxxx Xxxx XXXXX 00, 0xx Xxxxx, Xxxxxx,
Xxxxx
Date and place of formation: 24 February 1999 - Madrid, Spain
Directors: United Surgical Partners Europe,
S.L. (represented by Xxxx Xxxxx
Xxxxx del Xxxxxx) (Managing Director)
Xxxxxxx Xxxxx Xxxxx (Chairman)
Xxxxxx Xxxxxxx Scokin
Xxxxxx Xxxxxxxx Xxxxxxx
Secretary: Angel Xxxxx Xxxxx Xxxxxx (Secretary)
Xxxxx Xxxxxxx de las Xxxxx (Vice
Secretary)
Accounting reference date: 31 December
Auditors: KPMG auditores, S.L.
Capital: E 6.600
Participations: 1,100
Stake held by the Seller's Group: 100%
26
15. USP HOSPITAL SAN XXXXXX XXXXXX, X.X. (SOCIEDAD UNIPERSONAL)
Mercantile Registry details: Volume 1,946, Folio 126, Page number
MU-42,798
Mercantile Registry of Murcia
Tax identification code: B/82452558
Registered office: Xxxxxxx Xxxxxx Xxxxxxxxx 00, Xxxxxx,
Xxxxx
Date and place of formation: 13 October 1999 - Madrid, Spain
Directors: Xxxxxxx Masfurroll Lacambra (Chairman)
Xxxxxxx Xxxxx Xxxxx (Vice Chairman)
United Surgical Partners Europe, S.L.
(represented by Xxxxxxx Xxxxx Xxxxx)
Xxxx Xxxxx Xxxxx Xxxxxxxx
Xxxx Xxxxx Xxxxx del Xxxxxx
Xxxxxx Xxxxxxx Scokin
Xxxxx Xxxxxxxxx Xxxxxxx
Secretary: Xxxx Xxxxx Xxxxx del Molino (Secretary)
Xxxxx Xxxxxxx de las Xxxxx (Vice
Secretary)
Accounting reference date: 31 December
Auditors: KPMG auditores, S.L.
Capital: E 2,253,006
Participations: 2.253,006
Stake held by the Seller's Group: 100%
16. USP INSTITUTO DEXEUS, S.A.
Mercantile Registry details: Volume 32,446, Folio 107, Page number
B-18459
Mercantile Registry of Barcelona
Tax identification code: A/08241572
Registered office: Xxxxx Xxxxxxxx 00-00, Xxxxxxxxx, Xxxxx
Date and place of formation: 16 October 1969 - Barcelona, Spain
Directors: Xxxxxxx Masfurroll Xxxxxxxx (Chairman)
Xxxx Xxxxx Xxxxx Xxxxxxxx
United Surgical Partners Europe, S.L.
27
(represented by Xxxxxxx Xxxxxx Xxxxxxx)
(Managing Director)
Xxxx Xxxxx Villarrubias Guillament
Consultorio Dexeus, S.A. (represented
by Pere N. Xxxxx Xxxxx)
Xxxxxx X. Xxxxx
Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxx Xxxxx Xxxxx
Xxxx Xxx Xxxxxx
Secretary: Xxxx Xxxxx Xxxxx del Molino (Secretary)
Xxxxx Xxxxxxx de las Xxxxx
(Vice-Secretary)
Accounting reference date: 31 December
Auditors: KPMG Auditores, S.L.
Capital: E 3,131,210
Shares: 52,100
Stake held by the Seller's Group: 79,06%
17. USP OFTALMOLOGIA XXXXXXX, X.X. (SOCIEDAD UNIPERSONAL)
Mercantile Registry details: Volume 2,776, folio 210, Page number
C-32,131
Mercantile Registry of La Coruna
Tax identification code: B/83707901
Registered office: Xxxxx Xxxxxxxx 0, Xx Xxxxxx, Xxxxx
Date and place of formation: 11 July 2003 - Madrid, Spain
Directors: Instituto Policlinico Santa Teresa,
S.A. (represented by Xxxxxxx Xxxxx
Xxxxx) (Managing Director)
Xxxxxxx Masfurroll Xxxxxxxx (Chairman)
Xxxx Xxxxx Xxxxx Xxxxxxxx (Vice
Chairman)
Xxxxxxx Xxxxx Liria
Secretary: Xxxxx Xxxxxxx de las Xxxxx (Secretary)
Xxx Xxxxxxx Xxxxx (Vice Secretary)
Accounting reference date: 31 December
28
Auditors: N/A
Capital: E 257,103
Participations: 257,103
Stake held by the Seller's Group: 91.14%
29
PART 2 - ASSOCIATED COMPANIES
1. CENTRO DE PATOLOGIA CELULAR Y DIAGNOSTICO PRENATAL, S.A.
Mercantile Registry details: Volume 22,242, Folio 48, Page number
B-35,522
Mercantile Registry of Barcelona
Tax identification code: A/58494378
Registered office: Xxxxxxx 0, Xxxxxxxxxx, Xxxxxxxxx, Xxxxx
Date and place of formation: 23 December 1987 - Barcelona, Spain
Directors: Xxxx Xxxxx Xxxxxxx Xxxxx (Chairman)
Xxxxxx Xxxxx Xxxxxxxx
Xxxxxxxx de X. Xxxx Enrich (Managing
Director)
Xxxxxxx Xxxxxx Xxxxxxx
Xxxx Xxxxxxx Tobella
Secretary: Xxxxxx Xxxxx Xxxxxxxx
Capital: E 61,422.2
Shares: 1,022
Stake held by the Seller's Group: 9.98%
2. DENSITOMETRIA OSEA COMPUTERIZADA, S.L.
Mercantile Registry details: Volume 24,094, Folio 65, Page number
B-64,203
Mercantile Registry of Barcelona
Tax identification code: B/58471475
Registered office: Xxxxxxx Xxxxxxxx 000, Xxxxxxxx x, 0(0),
0xx Xxxxx, Xxxxxxxxx, Xxxxx
Date and place of formation: 4 December 1987 - Barcelona, Spain
Details of notarial deed of formation:
Directors: Consultorio Dexeus, S.A. (represented
by Xxxxxx Xxxxxxxx Xxxxxxxxx) (Sole
Director)
Secretary: N/A
Capital: E 28,547.50
Participations: 475
Stake held by the Seller's Group: 26.74%
30
3. IMAGENES DIAGNOSTICAS, S.A.
Mercantile Registry details: Volume 32,446, Folio 148, Page number
B-22,860
Mercantile Registry of Barcelona
Tax identification code: A/08627858
Registered office: Xxxxx Xxxxxxxx 00, 0xx Xxxxx,
Xxxxxxxxx, Xxxxx
Date and place of formation: 8 February 1980 - Barcelona, Spain
Directors: Consultorio Dexeus, S.A. (represented
by Xxxxxx Xxxxxxxx Xxxxxxxxx) (Sole
Director)
Secretary: N/A
Capital: E 102,172.06
Shares: 1,700
Stake held by the Seller's Group: 13.18%
4. ESTUDIOS FUNCIONALES, S.A.
Mercantile Registry details: Volume 33,940, Folio 211, Page number
B-17,465
Mercantile Registry of Barcelona
Tax identification code: A/58174392
Registered office: Xxxxx Xxxxxxxx 00-00, Xxxxxxxxx, Xxxxx
Date and place of formation: 19 February 1986 - Barcelona, Spain
Directors: Consultorio Dexeus, S.A. (represented
by Xxxxxx Xxxxxxxx Xxxxxxxxx) (Sole
Director)
Secretary: N/A
Capital: E 75,125
Shares: 1,200
Stake held by the Seller's Group: 14.8%
5. UNIDAD DE RECUPERACION DEL SUELO PELVICO, S.L.
Mercantile Registry details: Volume 29,104, Folio 86, Page number
B-149,401
31
Mercantile Registry of Barcelona
Tax identification code: B/69907714
Registered office: Xxxxx Xxxxxxxx 00, 0 xxxxxxx,
Xxxxxxxxx, Xxxxx
Date and place of formation: 18 July 1995 - Barcelona, Spain
Directors: Consultorio Dexeus, S.A. (represented
by Xxxxxx Xxxxxxxx Xxxxxxxxx) (Sole
Director)
Secretary: N/A
Capital: E 37,863
Participations: 6,300
Stake held by the Seller's Group: 15%
32
SCHEDULE 3
SELLER'S WARRANTIES
1. GENERAL
1.1 DUE INCORPORATION AND CAPACITY
The Seller and the Guarantor are corporations validly existing under the
laws of England and Delaware, United State, respectively, with the
requisite power and authority to enter into and perform, and have taken
all necessary corporate action to authorise the execution and performance
of, their obligations under this Agreement.
1.2 VALID OBLIGATIONS
This Agreement constitutes valid and a binding obligation of the Seller.
1.3 FILINGS AND CONSENTS
Other than as contemplated by this Agreement, no notices, reports or
filings are required to be made by the Seller in connection with the
transactions contemplated by this Agreement, nor are any consents,
approvals, registrations, authorisations or permits required to be
obtained by the Seller in connection with the execution and performance of
this Agreement.
1.4 RECITALS
The particulars relating to the Group Companies and Associated Companies
set out in the recitals and the schedules to this Agreement are true and
accurate and not misleading.
1.5 INCORPORATION AND CONDUCT OF BUSINESS
Each Group Company a corporation validly existing under the laws of Spain
with full power and authority to conduct its business in the ordinary
course, and is not in breach of or fails to meet any material legal
requirement that could prevent it to continue its business in the ordinary
course, as it has been doing until now.
1.6 OWNERSHIP OF PARTICIPATIONS
The Class A Participations and the Class B Participations constitute the
whole of the capital of the Company.
There is no option, right to acquire, mortgage, charge, pledge, lien or
other form of security or encumbrance on, over or affecting any of the
Participations and there is no agreement or commitment to give or create
any of the foregoing, subject to clause 13.
The Seller is entitled to transfer the ownership of the Participations on
the terms set out in this Agreement and subject to clause 13.
1.7 SUBSIDIARIES AND ASSOCIATES
The Seller is the indirect owner of the Transaction Companies in the
percentages set out in the schedule headed "Subsidiaries and Associated
Companies".
Other than as set out in the schedule headed "The Subsidiaries and
Associated Companies", no Group Company is the holder of, nor has agreed
to acquire, any shares of any other company.
None of the Group Companies is subject to compulsory dissolution.
33
1.8 ACCOUNTS
The 31 December 2003 Accounts and the 30 June 2004 Accounts:
(a) have been prepared in accordance with Spanish GAAP;
(b) have been prepared on a consistent basis utilising the accounting
policies of the Company for the preceding financial periods;
(c) make adequate provision for, or disclose, all liabilities of the
Group Companies, whether actual or contingent; such liabilities are
adequately recorded and valued in the Accounts, according to Spanish
GAAP, consistently applied; and
(d) all material assets are correctly recorded and valued in the
Accounts and appropriate provisions are made for all of them in
accordance with the Group Companies accounting policies, valuation
criteria and practices and under Spanish GAAP, consistently applied.
The 31 December 2003 Accounts present the true and fair view ("imagen
fiel") of the financial situation of the Group Companies (on a
consolidated basis) and each of the Group Companies, their net worth
position ("fondos propios") as at 31 December 2003 and the results of
their operations for the period then ended;
The 30 June 2004 Accounts present the true and fair view ("imagen fiel")
of the financial situation of the Group Companies, their net worth
position ("fondos propios") as at 30 June 2004 and the results of their
operations for the period then ended on a consolidated basis.
1.9 POSITION SINCE THE ACCOUNTS DATE
Since the Accounts Date and up to Completion:
(a) there has not occurred a material adverse change in the business,
operations, assets or liabilities, or in the condition (financial,
trading or otherwise) or profits of any of the Group Companies, or
any other event or circumstance that may result in such a material
adverse change which in any such case is incapable of being remedied
or, if capable of being remedied, is not remedied by Completion;
(b) the business of the Group Companies has been carried on in the
ordinary course in all material respects;
(c) no dividend or other distribution has been declared, paid or made by
a Group Company;
(d) no share or loan capital has been issued or agreed to be issued by a
Group Company;
(e) no disposal of, or agreement to dispose of, any material properties
or assets of any Group Company has taken place or been agreed.
1.10 PROPERTIES AND MATERIAL ASSETS
The Group Companies have sufficient legal title to use (i) the real estate
properties in which they carry out their respective businesses and (ii)
the movable assets that are material for the carrying out of their
respective businesses.
The properties and material assets of the Group Companies are free from
liens, encumbrances, charges and third party rights save as disclosed in
the Disclosure Letter.
34
1.11 EXISTING SUPPLIERS
So far as the Seller is aware since the Accounts Date, no material
supplier of the Group Companies has ceased or has notified the Seller or
the Group Companies that it will cease supplying or that it will adversely
and substantially alter the terms on which it supplies the Group
Companies.
1.12 INTELLECTUAL PROPERTY RIGHTS ("DERECHOS DE PROPIEDAD INTELECTUAL E
INDUSTRIAL")
So far as the Seller is aware, no notice has been received by any Group
Company claiming that it infringes any right in confidential information
or other intellectual property right of any third party.
All intellectual property rights used by each Group Company for the
purpose of carrying on its business as currently carried on are vested
solely and beneficially in or are licensed to a Group Company. In
particular, the Company is the holder of all exploitation rights
("derechos de explotacion") over the AHM Software world-wide and for the
whole term of their legal protection are owned within the Group Companies
or, where this statement could be challenged because of the terms of the
transfer deed of the AHM Software from Instituto Dexeus to the Company,
the terms of such transfer deed are capable of being clarified or amended
so that this Warranty would be true and accurate and not misleading. There
are no licences over the AHM Software other than as set out in the
Disclosure letter, and the AHM Software is internally maintained by
employees of the Company within the scope of their contractual duties and
under the instructions given by the Company.
There is no outstanding infringement or formally notified infringement or,
so far as the Seller is aware, the threat of any infringement of any
intellectual property rights by a Group Company.
So far as the Seller is aware, no Group Company has (except in the
ordinary course of business, to its professional advisers, as required by
law or any regulatory authority or subject to a confidentiality
undertaking) disclosed to any person other than the Purchaser (and its
professional advisers) any secret or confidential information relating to
its business.
No Group Company trades under any business name other than its corporate
name.
1.13 CONTRACTS
Save as disclosed in the Disclosure Letter, and so far as the Seller is
aware, no Group Company is a party to any material contract (or has
entered into any understanding or letter of intent for the entering into
such contract) which:
(a) was entered into otherwise than in the ordinary course of trading;
or
(b) is of a long-term nature (that is to say, incapable of performance
in accordance with its terms within 12 months after the date on
which it was entered into or undertaken); or
(c) involves the supply of goods the aggregate sales value of which will
represent in excess of 10 per cent. of the turnover for the current
financial year of the Group; or
(d) in any way restricts its freedom to carry on the whole or any
material part of its business as it does at present; or
(e) has a change of control provision except as disclosed in the
Disclosure Letter.
35
So far as the Seller is aware, no Group Company has received notice that
it is in default under any agreement, mortgage, charge or pledge which is
material to the financial condition of the Group.
There are no subsisting material contracts to which a Group Company is a
party and in which any member of the Seller's Group has a material
interest (other than, in the case of the Seller, its interest in the
Participations).
So far as the Seller is aware, no Group Company is nor has agreed to
become a member of any partnership or other unincorporated association,
joint venture or consortium (other than recognised trade associations),
other than in respect of an Associated Company.
1.14 INDEBTEDNESS
So far as the Seller is aware, no Group Company has received any notice to
repay any borrowings or indebtedness under any agreements relating to any
borrowing (or indebtedness in the nature of borrowing) which are repayable
on demand; and no event of default has occurred and is outstanding under
any agreement relating to any other borrowing or indebtedness in the
nature of borrowing or other credit facility of a Group Company.
So far as the Seller is aware, the total amount borrowed by each Group
Company from its bankers does not exceed its overdraft and other
facilities.
So far as the Seller is aware, and except for intercompany loans to
another Group Company, no Group Company has lent any money which is due to
be repaid and, as at the date of this Agreement, has not been repaid or
owns the benefit of any debt other than debts accrued in the ordinary
course of its business.
1.15 LITIGATION
Except as plaintiff in the collection of debts arising in the ordinary
course of business and save as disclosed in the Disclosure Letter, no
Group Company is a plaintiff or defendant in or otherwise a party to any
material litigation, arbitration or administrative proceedings which are
in progress nor, so far as the Seller is aware, have such proceedings been
expressly threatened by or against any Group Company or any of its assets.
1.16 INSURANCES
The Group Companies have taken out insurance coverage that is reasonable
and customary for the type of activities they carry out any such insurance
coverage is in full force and effect.
1.17 EMPLOYEES
The Group Companies have complied in all material respects with all their
respective labour obligations under the applicable law and in all material
respects has paid salaries and remunerations as well as Social Security
contributions as the same are due and/or customarily payable, save as
disclosed in the Disclosure Letter. In accordance with Spanish GAAP, the
Group Companies have established sufficient provision for the payment of
all wages and Social Security amounts that have already accrued but which
have not been paid and for which the voluntary period for their payment
has not yet expired.
Save as disclosed in the Disclosure Letter, and so far as the Seller is
aware, the Group Companies do not have knowledge of any labour dispute or
conflicts pending resolution.
A descriptive chart of the employees of the Group Companies is attached as
Schedule 16 identifying for each hospital average gross salary, seniority,
age, and an indication of the professional standing of the personnel, the
type of employment contract and the benefits
36
in terms of cash remuneration, salary and of any other kind, including
severance payments on termination of employment contracts and date of
effectiveness of their agreements as well as any other relevant
condition.] [Management to confirm the scope of this schedule.
2. TAX WARRANTIES
The Group Companies and have filed regularly and in due time all the Tax
Returns, reports, data and accounting statements it is obliged to file in
respect of these for all their Taxes and have paid the Tax due on time.
All these documents were accurate, complete and correct when filed in all
significant respects. In accordance with Spanish GAAP, the Group Companies
have established sufficient provision for the payment of all taxes that
have already accrued but which have not been paid and for which the
voluntary period for their payment has not yet expired.
The Group Companies have deducted or withheld from the recipients of
payments, including employees, independent professionals, directors,
agents, etc., the correct and precise amounts for all the relevant Tax
periods in compliance with the applicable tax provisions, and has properly
accounted for any Tax in this respect.
So far as the Seller is aware, and save as disclosed in the Disclosure
Letter, there is no Tax inspection of any of the Group Companies in
progress or known.
So far as the Seller is aware, the Group Companies have complied with any
obligation to register for the purposes of VAT, goods and services tax,
sale tax, business transfer tax, customs duties and similar Taxes.
The Tax credit ("credito fiscal en cuota") arising from the aggregate
available Tax losses of the Group Companies is Euro 5,882,000. The Group
Companies keep all accounting documentation and of any other type, its
supporting documents, including books and returns, corresponding to all
years when they have recorded tax losses, even those that have prescribed.
3. NO MATERIAL MISSTATEMENT OF INFORMATION
So far as the Seller is aware, the information disclosed to the Purchaser
during the Due Diligence and that is set out in this Agreement and its
schedules in relation to the Group Companies is, in all material respects,
true and accurate and not misleading and no material changes have occurred
or are being negotiated in respect of such information.
The Seller has no knowledge of any fact or circumstance that could impair
the Group Companies to continue to operate in the manner they currently
do. By way of exception, in this paragraph the Seller shall only be deemed
to have knowledge if the fact or circumstance should have been known by a
seller not acting with gross negligence or willful misconduct.
The Seller has no knowledge of any information, facts or circumstances
that could materially affect the Group Companies, their respective net
worth ("patrimonios netos") or businesses that are not reflected in this
Agreement and its Schedules and that, if they were known by a purchaser
acting with the diligence of a prudent businessman ("ordenado
comerciante") could make such purchaser not enter into this sale and
purchase. All information about the Group Companies which might be
relevant to a purchaser have been disclosed to the Purchaser in writing.
By way of exception, in this paragraph the Seller shall only be deemed to
have knowledge if the fact or circumstance should have been known by a
seller not acting with gross negligence or willful misconduct.
As far as the Seller is aware there is nothing in the Data Room Documents
that should have been Disclosed but is not the subject of a specific
disclosure in the Disclosure Letter or disclosed in the Vendor's Due
Diligence.
37
SCHEDULE 4
LIMITS ON WARRANTY CLAIMS
1. ACKNOWLEDGEMENT
The Purchaser acknowledges and agrees that:
(a) the Warranties are the only representations, warranties or other
assurances of any kind given by or on behalf of the Seller or any
member of the Seller's Group and on which the Purchaser may rely in
entering into this Agreement;
(b) no other statement, promise or forecast made by or on behalf of the
Seller or any member of the Seller's Group may form the basis of, or
be pleaded in connection with, any claim by the Purchaser under or
in connection with this Agreement; and
(c) at the time of entering into this Agreement, it is not aware of any
matter or thing not Disclosed by the Seller which is inconsistent
with the Warranties or constitutes a breach of any of them.
This paragraph 1 shall be deemed to have been repeated by the Purchaser as
at Completion.
2. EXCLUSIONS
The Seller shall not be liable in respect of a Warranty Claim to the
extent that it relates to any liability or obligation on the part of a
Group Company:
(a) to the extent that the Warranty Claim is attributable to any
voluntary act, omission, transaction or arrangement carried out
prior to Completion at the request of or with the consent of the
Purchaser; or
(b) for which provision is made, or of which the payment or discharge is
reflected, in the Accounts; or
(c) which would not have arisen but for a change in legislation or a
change in the interpretation of legislation on the basis of case law
made after Completion (whether relating to Taxation, the rate of
Taxation or otherwise) or any amendment to or the withdrawal of any
practice previously published by a Taxation Authority, in either
case occurring after Completion, whether or not that change,
amendment or withdrawal purports to be effective retrospectively in
whole or in part; or
(d) which arises as a result of any change after Completion of the date
to which the Company makes up its accounts or in the bases, methods
or policies of accounting of the Company other than a change which
is reported by the auditors for the time being of the Company to be
necessary in their opinion because such bases, methods or policies
of accounting as at the date of Completion are not in accordance
with any published accounting practice or principle then current; or
(e) to the extent that the Warranty Claim is attributable to any act or
omission of the Purchaser, the Purchaser's Group or any Group
Company after Completion outside the ordinary course of the
Company's business as it was operated up to Completion; or
38
(f) of which the Purchaser has been made aware in the Disclosure Letter
or the Vendor's Due Diligence(1) (this is, that has been Disclosed
by the Seller); or
(g) in respect of the information contained the Madrid, Barcelona, La
Coruna, Murcia, Malaga, Sevilla and Alava Commercial Registries, and
the Sevilla number 8, Barcelona number 8, La Coruna number 2, Madrid
number 21, Vitoria number 2 and Marbella number 2 Land Registries as
of 21 2004; or
(h) to the extent that either any Group Company, the Purchaser or any
other member of the Purchaser's Group duly obtains the benefit of
Relief in an accounting period after Completion for an expenditure,
reserve or provision which was recognised in the Accounts; or
(i) which arises or is increased as a result of the failure or omission
of any Group Company to make any valid claim, election, surrender or
disclaimer, to give any valid notice or consent or to do any other
thing under the provisions of any enactment or regulation relating
to Taxation after Completion, the making, giving or doing of which
was taken into account in computing the provisions for Taxation in
the Accounts; or
(j) which arises or is increased as a result of any claim, election,
surrender or disclaimer made or notice or consent given after
Completion by any Group Company or any member of the Purchaser's
Group under the provisions of any enactment or regulation relating
to Taxation other than any claim, election, surrender, disclaimer,
notice or consent assumed to have been made, given or done in
computing the amount of any allowance, provision or reserve in the
Accounts; or
(k) to the extent that the matter giving rise to the Warranty Claim is a
liability of the Company for Tax arising because the assets of any
Group Company are more than, or its liabilities are less than, those
taken into account in computing the provision for Tax in the
Accounts. This limitation on the Warranty Claim is extended
exclusively up to the amount for which the Group Company's assets
are more than, or its liabilities are less than, those taken into
account in computing the provision for Tax in the Accounts, and only
applies when the relevant assets or liabilities were not taken into
account in computing the provision due to a mistake (although the
Seller has no knowledge of such a circumstance); or
(l) if any Group Company or the tax consolidation group has not utilised
tax losses ("bases imponibles negativas") available to any of them
at Completion, to the extent that the additional taxable income of
which the Warranty Claim would be based can be offset against such
tax losses; or
(m) which would not have arisen but for a cessation, or any change in
the nature or conduct, of any trade carried on by any Group Company
at Completion, being a cessation or change occurring after
Completion.
The Purchaser irrevocably waives any right it may have to claim Damages
and/or rescission and/or any other remedy available to it or any Group
Company in law in respect of any breach by the Seller of any Warranty or
this Agreement arising whether in contract or in tort ("responsabilidad
extracontractual") unless it establishes gross negligence ("culpa grave")
or wilful misconduct ("dolo") on the part of the Seller.
The Purchaser undertakes not to bring any action against any director of
any Group Company who holds or has held such position as at the date of
Completion, other than as a result of gross negligence or wilful
misconduct.
-----------
(1)
39
3. FINANCIAL LIMITS
The liability of the Seller under or in respect of the Warranties and this
Agreement shall be limited as follows:
(a) there shall be disregarded for all purposes any breach of the
Warranties in respect of which the amount of the Damages to which
the Purchaser would otherwise be entitled is less than Euro 60,000;
(b) the Purchaser shall not be entitled to recover any Damages in
respect of any breach or breaches of the Warranties or this
Agreement except to the extent that the amount of Damages in respect
of such breach or breaches exceeds in aggregate the sum of Euro
300,000, in which case the Purchaser shall only be entitled to
recover Damages for such excess; and
(c) the maximum aggregate liability of the Seller in respect of all and
any Warranty Claims and all and any claims under this Agreement
shall not exceed an amount of seventeen million four hundred and
eighty thousand seven hundred and sixty nine (17,480,769) Euro.
4. TIME LIMITS
The liability of the Seller in respect of the Warranties shall terminate:
(a) on the expiry of the legal statute of limitation in respect of those
matters set out in section 2 (Tax Warranties), and section 1.17
(Employment) of the schedule headed "Seller's Warranties"; and
(b) on the expiry of eighteen (18) months since Completion in respect of
all other matters contained in that schedule,
except in respect of any Warranty Claim of which notice is given to the
Seller before the relevant date. The liability of the Seller in respect of
any Warranty Claim shall in any event terminate if proceedings in respect
of it have not been commenced within 12 months of service of notice of
that Warranty Claim; proceedings for these purposes means arbitral,
judicial or administrative proceedings, ongoing negotiations in respect of
a claim or an extra-judicial settlement process provided, however, that
this time limit shall not apply to Warranty Claims that are not Third
Party Claims or to Third Party Claims that refer to Tax, labour or Social
Security matters.
5. NOTICE OF WARRANTY CLAIMS
If the Purchaser or any of the Group Companies becomes aware of a matter
which is likely to give rise to a Warranty Claim, the Seller shall not be
liable in respect of it unless the Purchaser has given notice of the
relevant facts to the Seller as soon as reasonably practicable after
becoming aware of those facts and in any event within 30 days of becoming
aware of those facts.
6. CONDUCT OF THIRD PARTY CLAIMS
If a Warranty Claim arises as a result of, or in connection with, a
liability or alleged liability to a third party (a Third Party Claim),
then:
(a) the Purchaser shall procure the relevant Group Company to make
available to the Seller such persons and all such information as the
Seller may reasonably require for assessing, contesting, appealing
or compromising the Third Party Claim;
(b) the Purchaser shall procure the relevant Group Company, to the
extent reasonably practicable, to consult with the Seller in
relation to the conduct of any appeal,
40
dispute, compromise or defence of the Third Party Claim and not to
compromise, admit liabilities in respect of, or settle the Third
Party Claim without the Seller's prior written consent; and
(c) the Purchaser shall, and shall procure that the relevant Group
Company shall, keep the Seller informed of the progress of the Third
Party Claim.
7. RECOVERY FROM THIRD PARTIES
This paragraph applies if:
(a) the Seller makes a payment (excluding any interest on a late
payment) in respect of a Warranty Claim (the Damages Payment); and
(b) any Group Company or the Purchaser receives any sum which would not
have been received but for the circumstance which gave rise to that
Warranty Claim (the Third Party Sum); and
(c) the receipt of the Third Party Sum was not taken into account in
calculating the Damages Payment; and
(d) the aggregate of the Third Party Sum and the Damages Payment exceeds
the amount required to compensate the Purchaser in full for the loss
or liability which gave rise to the Warranty Claim in question, such
excess being the Excess Recovery.
If this paragraph applies, the Purchaser shall, promptly on receipt of the
Third Party Sum by it or the relevant Group Company, repay to the Seller
an amount equal to the lower of (i) the Excess Recovery and (ii) the
Damages Payment, after deducting (in either case) all costs incurred by
the Purchaser or the relevant Group Company in recovering the Third Party
Sum and any taxation payable by the Purchaser or any Group Company by
virtue of its receipt.
8. INSURANCE
Without prejudice to the Purchaser's duty to mitigate any loss in respect
of any breach of the Warranties, if in respect of any matter which would
otherwise give rise to a breach of the Warranties the Purchaser, the
Purchaser's Group or any of the Group Companies is entitled to claim under
any policy of insurance (or would have been so entitled had it maintained
in force its insurance cover current at Completion), the amount of
insurance monies to which that the Purchaser, the Purchaser's Group or any
Group Company is or would have been entitled shall reduce pro tanto or
extinguish the claim for breach of the Warranties.
9. RESCISSION
Subject to satisfaction of the terms for Completion under 5 above, the
Purchaser shall not be entitled to rescind or terminate this Agreement
after Completion in any circumstances.
41
SCHEDULE 5
ACCOUNTS
PART A - COMPLETION BALANCE SHEET
This schedule describes the procedure for the preparation of the Completion
Balance Sheet exclusively for the purposes of clauses 6 and 7 of the Agreement.
1. As soon as reasonably practicable and by no later than ninety (90)
calendar days following the date of Completion, the Seller shall be
entitled to procure that the Company prepares and delivers to the Seller
and the Purchaser a consolidated balance sheet of the Group Companies as
of the last day of the month preceding the date of Completion (the Draft
Completion Balance Sheet), except in the case that either Party or the
Accountant believe that there may be significant differences or variations
in some of the items of the Draft Completion Balance Sheet attributable to
the month in which Completion takes place, in which case the Draft
Completion Balance Sheet shall be prepared as of the date of Completion.
The Draft Completion Balance Sheet will be prepared in the form and
include the items shown at part B of this schedule and in accordance with
the following:
(a) The specific policies set out in part C of this schedule;
(b) To the extent not covered by paragraph (a), the same accounting
policies, principles, practices, evaluation rules and procedures,
methods and bases adopted by the Company in the preparation of the
Accounts; and
(c) To the extent not covered by paragraphs (a) and (b), Spanish GAAP in
force at the Accounts Date, which shall prevail in case of
discrepancy with (a) and /or (b) above.
2. Within sixty (60) calendar days of delivery to the Purchaser of the Draft
Completion Balance Sheet, the Purchaser and the Seller shall notify the
other Party in writing of any item or items it wishes to dispute together
with the reasons for such dispute and a list of proposed adjustments. An
adjustment may only be proposed if it exceeds fifty thousand (50,000)
Euro. If, by the expiry of such 60-day period, no such notice is received
by either the Seller or either Party has notified the other Party that
there are no items it wishes to dispute, the Draft Completion Balance
Sheet shall constitute the Completion Balance Sheet for the purposes of
this Agreement.
3. If notice is received by the Seller or the Purchaser under paragraph 1.2
of Part A of this schedule that there are items in dispute, the Seller and
the Purchaser shall attempt to agree in writing the item or items disputed
them. If such item or items is or are not agreed in writing between the
Seller and the Purchaser within twenty-eight (28) calendar days of the
delivery to the Purchaser of the Draft Completion Balance Sheet, the item
or items in dispute shall be determined by Ernst & Young (the
Accountants). Should Ernst & Young refuse to accept their appointment or
fail to issue a decision within the prescribed time, the Accountants shall
be an independent firm of accountants to be designated on application of
any of the Parties to the "Instituto de Auditores y Censores Jurados de
Cuentas de Espana" (IACJC), unless the Parties agree otherwise. The
following instructions shall be provided to the IACJC in order to appoint
the Accountants in accordance with this paragraph:
(a) it shall not be one of the firms who has advised the Parties in this
transaction nor any other which at IACJC's sole discretion may have
a conflict of interest with the Seller or the Purchaser; and
(b) it shall be an international firm ranking amongst the first eight
(8) in terms of turnover in Spain in any of the last two years.
42
4. Should the Accountants designated by the IACJC refuse to accept their
appointment or fail to issue a decision within the prescribed time, any of
the Parties may submit a new request to the IACJC as provided in this
paragraph for the appointment of a new Accountant following, if feasible,
the same criteria and disregarding the firms who have either refused to
act or failed to reach a decision. If it is not possible for any
Accountants to fulfil the aforesaid task within six (6) months from the
date on which the relevant Party notified the other of the disputed item,
any Party shall be entitled to initiate arbitrations proceedings under
clause 20.2 for the final determination of the items in dispute.
5. The Draft Completion Balance Sheet, adjusted to reflect the item or items
as agreed between the Seller and the Purchaser in writing in accordance
with paragraph 1.3 of Part A of this Schedule or as determined by the
Accountants appointed under this schedule, shall constitute the Completion
Balance Sheet for the purposes of this Agreement. The date on which the
Completion Balance Sheet is finally determined by the Accountants, the
Parties or otherwise under this schedule shall be the Determination Date.
6. The Accountants shall act on the following basis:
(a) the Accountants shall act as experts and not as arbitrators and
their decision shall be final and binding on the Parties;
(b) the item or items in dispute shall be notified to the Accountants in
writing by the Seller and/or the Purchaser within fourteen (14)
calendar days of the Accountants' appointment should be after expiry
of the term of 1.3 above assuming that E&Y has already accepted
appointment;
(c) their terms of reference shall be to determine the amount of the
item or items in dispute (taking into account the provisions of this
Agreement relating to the form and content of the Completion Balance
Sheet and calculation of Completion Price) within forty-five (45)
calendar days of receipt of notice pursuant to paragraph (b) of this
paragraph;
(d) the Accountants shall decide the procedure to be followed in the
determination;
(e) the Seller and the Purchaser shall each provide (and to the extent
that they are reasonably able shall procure that their respective
accountants and the Purchaser shall procure that the Company
provides) the Accountants promptly with all information which they
reasonably require and the Accountants shall be entitled (to the
extent that they consider it appropriate) to base their opinion on
such information and on the accounting and other records of the
Company;
(f) the costs of the determination, including fees and expenses of the
Accountants shall be borne equally as between the Seller on the one
hand and the Purchaser on the other hand.
7. The Seller and the Purchaser and their respective advisors shall provide
each other with all information, assistance and access to books and
records of account, documents, files and papers and information stored
electronically which they reasonably require for the purposes of Part A of
this Schedule. The Purchaser shall and shall procure that the Company and
its advisors shall provide the Seller and its advisors with all
information, assistance and access to books and records of account,
documents, files, papers and information stored electronically which they
may reasonably require for the purposes of Part A of this Schedule.
43
PART B - REFERENCE BALANCE SHEET
CONSOLIDATED BALANCE SHEET
000E 30.6.2004
------------------------------------- ---------
Start up costs 788
Gross intangible assets (excl.
goodwill and start-up costs) 18,972
Net intangible assets 23,752
Gross tangible assets 145,563
Net tangible assets 82,722
Financial assets 6,028
-------
Fixed assets 113,289
Goodwill on consolidation 21,568
Deferred costs 31,600
Uncalled share capital
Inventories 2,986
Debtors 32,796
VAT Marbella 1,982
Restricted cash on acquisitions 180
Other restricted cash 1,954
Cash and bank 1,990
Short term investments 26
Prepayments 868
-------
Current assets 40,801
-------
Total assets 207,258
=======
Shareholder' equity 49,390
Minority interests 4,930
Negative goodwill 1,765
Deferred revenue 5,863
Provisions for risks 829
Marbella retirement benefits 184
Other provisions for riks Financial 645
Bank debt 9,481
Group loans 43,684
Lease creditors 46,557
Non-financial
Group trade creditors 895
Deferred tax 7,382
Other long term creditors 1,945
-------
Long term liabilities 109,943
Bank debt 5,890
Lease creditors 1,992
Trade creditors 15,265
Fixed asset suppliers 3,222
Creditors for acquisitions 2,425
Other creditors 5,743
Deferred tax 750
Other 4,993
-------
Current liabilities 34,537
-------
Total equity and liabilities 207,259
=======
44
CONSOLIDATED PROFIT & LOSS ACCOUNT
000E S1 2004
------------------------------ --------
Patient revenue 59,933
Other revenue 1,250
Allowances (111)
-------
NET REVENUES 61,073
Operating expenses (46,861)
-------
SITE EBITDAR 14,211
Operating rents & leases (1,617)
-------
SITE EBITDA 12,594
Overheads head-offices (1,917)
-------
EBITDA 10,676
D&A (5,080)
-------
EBIT 5,596
Financial result (3,116)
Extraordinary result 1
-------
EBT 2,482
CIT 139
Minority sharehold. (267)
-------
PROFIT / (LOSS) FOR THE PERIOD 2,354
=======
45
PART C - SPECIFIC POLICIES FOR THE PREPARATION OF THE COMPLETION BALANCE SHEET
1. Subject to Schedule 6 "Completion Balance Sheet" Part A, clause 1.1, the
Completion Balance Sheet shall:
(a) be prepared as if the period beginning with the opening of business
on 1 January 2004 and ending as at the close of the business on the
Completion date ("Completion Period") was a financial year of the
Group headed by the Company (together with the appropriate
apportionment of income and expenditure);
(b) be prepared on a consolidated basis based on the books and records
of each company member of the Group headed by the Company and
considering the appropriate consolidation adjustments;
(c) be prepared on the basis as a going concern for each company members
of the Group headed by the Company and excluding any effect of the
change of control or ownership of the Company contemplated by this
Agreement;
(d) be prepared following the same classification criteria, as set out
in the Reference Balance Sheet included in Part B of this Schedule
6;
(e) to the extent not covered by the following clause 2. of this Part C,
be prepared in accordance with the same accounting principles,
policies, treatments, evaluation rules and procedures, methods and
bases adopted by the Group headed by the Company in the preparation
of the "Accounts" (defined as consolidated audited statutory
accounts at 31 December 2003).
2. In the preparation of the Completion Balance Sheet the following specific
accounting policies shall be applied:
(a) The goodwill arisen from acquisitions shall be allocated across the
tangible fixed assets following the same methods and original
amounts that were applied in the preparation of the Accounts.
Goodwill not allocated shall be amortised in a straight-line basis
in 20 years.
(b) Tangible fixed assets shall be valued at cost, which comprises the
original cost in the company which purchased the asset, plus legal
revaluations in accordance with Spanish laws and the accounting
allocation of goodwill (consolidation adjustment) as mentioned in
2.a) above. Tangible fixed assets are depreciated on a straight-line
basis over their estimated useful lives, which shall be the same
applied by each company member of the Group headed by the Company at
31 December 2003.
(c) No provision shall be recorded for depreciation or impairment of
fixed assets. No write offs of fixed assets shall be recorded.
(d) The accounting policy in connection with leases, including the
classification criterion between capital leases and operating leases
and the calculation of the Deferred expenses shall follow the same
criteria and original amounts adopted in the preparation of the
Accounts.
(e) Debtor and creditor balances in foreign currency shall be valued at
official rates at the Completion date. Unrealised losses arising
shall be charged directly to the profit and loss account whereas
unrealised gains shall be credited to deferred revenue on the
balance sheet.
(f) Retirement benefits in accordance with collective wage agreements in
certain centres shall be provided for in the Completion Balance
Sheet, following the same criterion and basis of estimate as those
used at the Accounts date.
46
(g) Bad debt provisions and Inventory values shall be calculated
following the same policies and basis of estimate as those used by
each company member of the Group headed by the Company at the
Accounts date.
(h) Subject to any other sub-paragraphs of this clause 2, where a
provision for risks was made in the 2003 audited consolidated
statutory accounts in relation to any matter o series of matters, no
increase in that provision shall be made.
(i) No provision shall be recorded in respect of or relating to the
following:
(i) transfer taxes levied in connection with San Xxxxxx shares
purchase;
(ii) any other tax, legal or labour exposures;
(iii) any reorganisation, redundancy, dismissal or closure;
(iv) Group acquisition and/or financing restructuring costs;
(v) post balance sheet events occurring after the delivery of the
draft Completion Balance Sheet.
(j) The corporate income tax for the Completion period shall be
calculated as though the Completion date was the last day of the
current accounting period and following the same policies and
treatments used at the Accounts date.
(k) No tax credit in connection with prior years' tax carry forward
losses shall be recorded.
In this Schedule, where the word "provision" is used in the context of the
Completion Balance Sheet, that shall be deemed to include any other
accrual, charge, write-off or adjustment which would have an equivalent
effect on the value of the assets and liabilities.
47
PART D - COMPLETION PRICE
For the purposes of clause 7, the Completion Price shall be calculated on
the Determination Date in accordance with the terms of this schedule.
The Completion Price will be calculated in accordance with the following
formula:
COMPLETION PRICE = P + 97% [-NDA + WCA + CEA + OALA]
Where:
P: the Price, as set out in clause 6.1;
NDA: the Net Debt Adjustment;
WCA: the Working Capital Adjustment;
CEA: the Capital Expenditure Adjustment; and
OALA: the Other Assets and Liabilities Adjustment
For the purposes of the above formula, the following definitions will be
used:
OPENING NET DEBT
It means Euro seventy eight five hundred and eighty (78,580) thousand, being the
net debt at 30 June 2004 as per the Reference Balance Sheet, including the Items
detailed in the Balance Sheet Items for the Completion Price Adjustment in Part
E of this schedule:
- Bank debt, short term and long term; plus
- Short term and long term lease finance creditors, minus
- Deferred expenses (interest) on leases; plus
- Short term and long term debt with Group Companies; plus
- Short term and long term debt with fixed assets suppliers; plus
- Short term and long term debt in connection with acquisitions of
companies; minus
- Restricted cash on acquisitions (under "Fixed-term deposits"); minus
- Other restricted cash on acquisitions (under "Short-term guarantee
deposits"); plus
- Provisions for retirement benefits; minus
- Cash and banks (excluding restricted cash previously considered); minus
- Short-term financial investments (excluding restricted investments
previously considered).
48
CLOSING NET DEBT
It means the net debt at the date of Completion as per the Completion Balance
Sheet, including the items consistent with the Balance Sheet Items for the
Completion Price Adjustment in Part E of this schedule:
- Bank debt, short term and long term; plus
- Short term and long term lease finance creditors, minus
- Deferred expenses (interest) on leases; plus
- Short term and long term debt with Group Companies; plus
- Short term and long term debt with fixed assets suppliers; plus
- Short term and long term debt in connection with acquisitions of
companies; minus
- Restricted cash on acquisitions (under "Fixed-term deposits"); minus
- Other restricted cash on acquisitions (under "Short-term guarantee
deposits"); plus
- Provisions for retirement benefits; minus
- Cash and banks (excluding restricted cash previously considered); minus
- Short-term financial investments (excluding restricted investments
previously considered)).
NET DEBT ADJUSTMENT (NDA)
It means the amount by which Closing Net Debt is greater than Opening Net Debt
(in which case such amount shall be expressed as a positive amount) or by which
Closing Net Debt is lower than Opening Net Debt (in which case such amount shall
be expressed as a negative amount).
OPENING WORKING CAPITAL (NET OF PROVISIONS)
It means Euro sixteen thousand three hundred and ninety two (16,392) thousand,
being the working capital at 30 June 2004 as per the Reference Balance Sheet,
including the Items detailed in the Balance Sheet Items for the Completion Price
Adjustment in Part E of this schedule:
- Inventories ("Stocks"); plus
- Debtors; plus
- Prepayments; minus
- Trade creditors; minus
- Other short-term creditors (excluding deferred tax and all the other items
previously included as part of the net debt)
49
CLOSING WORKING CAPITAL
It means the working capital at the date of Completion, as per the Completion
Balance Sheet, including the items consistent with Balance Sheet Items for the
Completion Price Adjustment in Part E of this schedule:
- Inventories ("Stocks"); plus
- Debtors; plus
- Prepayments; minus
- Trade creditors; minus
- Other short-term creditors (excluding deferred tax and excluding all the
other items previously included as part of the net debt)
WORKING CAPITAL ADJUSTMENT (WCA)
It means the amount by which Closing Working Capital is greater than Opening
Working Capital (in which case such amount shall be expressed as a positive
amount) or by which Closing Working Capital is lower than Opening Working
Capital (in which case such amount shall be expressed as a negative amount).
OPENING GROSS TANGIBLE AND INTANGIBLE ASSETS
It means Euro one hundred sixty four thousand and five hundred and thirty five
(164,535) thousand, being the gross tangible assets and gross intangible assets
(excluding goodwill, goodwill on consolidation and start up costs) at 30 June
2004 as per the Reference Balance Sheet, including the Items detailed in Balance
Sheet Items for the Completion Price Adjustment in Part E of this schedule:
- Gross tangible assets (before accumulated depreciation and provisions);
plus
- Gross intangible assets, excluding goodwill and start up costs (before
accumulated amortisation and provisions).
CLOSING GROSS TANGIBLE AND INTANGIBLE ASSETS
It means the gross tangible assets and gross intangible assets (excluding
goodwill, goodwill on consolidation and start up costs) at the date of
Completion as per the Completion Balance Sheet, including the items consistent
with Balance Sheet Items for the Completion Price Adjustment in Part E of this
schedule:
- Gross tangible assets (before accumulated depreciation and provisions);
plus
- Gross intangible assets, excluding goodwill and start up costs,(before
accumulated amortisation and provisions).
CAPITAL EXPENDITURE ADJUSTMENT (CEA)
It means the amount by which Closing Gross Tangible and Intangible Assets is
greater than Opening Gross Tangible and Intangible Assets (in which case such
amount shall be expressed as a positive amount) or by which Gross Tangible and
Intangible Assets is lower than Opening Gross Tangible and Intangible Assets (in
which case such amount shall be expressed as a negative amount).
50
OPENING OTHER ASSETS AND LIABILITIES
It means the amounts in Euro four thousand and eighty three (4,083) thousand at
30 June 2004 resulting from the following formula as per the Reference Balance
Sheet, and including the following Items as detailed in Balance Sheet Items for
the Completion Price Adjustment in Part E of this schedule, of the following:
- Long-term financial assets; minus
- Other long-term creditors, (excluding deferred tax and all the other items
previously included as part of the net debt)
CLOSING OTHER ASSETS AND LIABILITIES
It means the amounts resulting from the following formula at the date of
Completion as per the Completion Sheet and including the Items consistent with
Balance Sheet Items for the Completion Price Adjustment in Part E of this
schedule:
- Long-term financial assets; minus
- Other long-term creditors, (excluding deferred tax and all the other items
previously included as part of the net debt)
OTHER ASSETS AND LIABILITIES ADJUSTMENT (OALA)
It means the amount by which "Closing Other Assets and Liabilities" is greater
than "Opening Other Assets and Liabilities" (in which case such amount shall be
expressed as a positive amount) or by which "Closing other Assets and
Liabilities" is lower than "Opening Other Assets and Liabilities" (in which case
such amount shall be expressed as a negative amount).
51
PART E - BALANCE SHEET ITEMS FOR COMPLETION PRICE ADJUSTMENT
SCHEDULE 6
PART E
BALANCE SHEET ITEMS FOR COMPLETION PRICE ADJUSTMENT
(E'000) AS OF 30/6/04
---------------------------------------------- -------------
TOTAL NET DEBT: 78,580
-------
TOTAL DEBT 80,596
-------
defined as:
BANK DEBT
Long Term 9,481
Short Term 5,890
------
TOTAL 15,371
LEASE CREDITORS
Long Term 46,557
Short Term 1,992
Deferred Expenses (31,600)
------
TOTAL 16,949
AMOUNTS DUE TO GROUP COMPANIES
Group loans 43,684
Group trade creditors 895
------
TOTAL 44,579
FIXED ASSETS SUPPLIERS 3,222
CREDITORS FOR AQUISITIONS - NET
Creditors for acquisitions 2,425
Restricted cash on acquisitions (180)
Other restricted cash (1,954)
-----
TOTAL 291
PROVISION FOR PENSIONS AND SIMILAR COMMITMENTS 184
-------
TOTAL CASH: 2,016
-------
defined as:
CASH AND SHORT TERM INVESTMENTS
Cash and banks (excl. Restricted cash) 1,990
Short term investments 26
-------
TOTAL 2,016
-------
NET WORKING CAPITAL: 16,392
-------
defined as:
CURRENT ASSETS
Inventories 2,986
Debtors 32,796
Prepayments 868
------
TOTAL 36,650
less:
52
CURRENT LIABILITIES
Trade creditors 15,265
Other creditors (excluding deferred tax) 4,993
-------
TOTAL 20,258
-------
GROSS TANGIBLE AND INTANGIBLE ASSETS 164,535
-------
defined as:
Gross tangible assets 145,563
Gross intangible assets (excl. goodwill and start-up costs) 18,972
-------
OTHER ASSETS AND LIABILITIES 4,083
-------
defined as:
Long term financial assets 6,028
Other long term creditors (1,945)
53
SCHEDULE 6
PURCHASER WARRANTIES
1. CAPACITY
The Investment Group (and, when appropriate, the Purchaser) has obtained
all necessary corporate and other consents and approvals in relation to
the performance of this Agreement and, accordingly, has full power to
enter into and perform this Agreement which constitutes binding
obligations on the Investment Group (and, when appropriate, the Purchaser)
in accordance with its terms.
2. FUNDING
The Purchaser shall at the relevant time have immediately available on an
unconditional basis (subject only to Completion) the necessary cash
resources to meet its obligations under this Agreement.
3. CONSENT
No governmental regulatory or other consent is required to enable the
Purchaser to fulfil its obligations under this Agreement.
4. FEES AND COMMISSIONS
The Purchaser has not entered into any contract or other arrangement or
understanding with any person or entity that may result in the obligation
of the any member of the Seller's Group to pay any fees or commissions to
any broker or finder as a result of this Agreement or the Completion of
the Transaction.
5. BREACHES OF OTHER AGREEMENTS
The execution of and performance of the terms of this Agreement by the
Purchaser will not give rise to a breach of any other agreement between
the Purchaser and any third party.
54
SCHEDULE 7
PRE-COMPLETION
1. ACCESS
Pending Completion, the Seller shall:
(a) procure that the Purchaser, its agents and representatives are given
reasonable access to the properties and to the books and records of
the Group Companies during normal business hours on any Business Day
and on reasonable notice to the Seller; and
(b) provide such information regarding the businesses and affairs of the
Group Companies as the Purchaser may reasonably require.
(c) Cancel all Outstanding Security on the date of Completion BUT prior
to the excution of the Transaction.
2. CONDUCT OF BUSINESS
The Seller hereby undertakes to the Purchaser that in the period prior to
Completion:
(a) the businesses of the Group Companies will be carried on as a going
concern in the normal course;
(b) no physical assets of the Group Companies shall be removed from any
of its properties or disposed of save in the ordinary course of
normal day to day trading and market conditions;
(c) it will use its best endeavours to maintain the trade and trade
connections of the Group Companies;
(d) it will procure that all debts which the Group Companies incurs in
the normal course of the business will be settled by the Group
Companies within the applicable periods of credit (where such
periods expire prior to Completion);
(e) it shall promptly give to the Purchaser full details of any actual
or potential material changes known to the Seller in the business,
financial position and/or assets of the Group Companies;
(f) the Group Companies shall maintain in force policies of insurance
with limits of indemnity at least equal to, and otherwise on terms
no less favourable than, those policies of insurance currently
maintained by the Group Companies;
(g) the Group Companies will properly record and/or account for all
events, actions and transactions affecting or carried out by the
Group Companies, in accordance with Spanish GAAP and with accounting
policies and valuation criteria consistently applied by the Group
Companies;
(h) the Group Companies shall not, otherwise than in the ordinary course
of business:
(i) enter into, modify or agree to terminate any material contract
(other than in the ordinary course of business);
(ii) alter, or agree to alter, the terms and conditions of
employment (including benefits) of any of its employees or
workers, nor dismiss any of its employees or workers and the
Seller shall not directly or indirectly induce or
55
endeavour to induce any of such employees or workers to
terminate their employment prior to Completion:
(iii) dispose of any material assets used or required for the
operation of the business or enter into any other transaction
otherwise than in the ordinary course of business;
(iv) create any encumbrance over any of its assets or its
undertaking nor, otherwise than in the ordinary course of the
business, give any guarantees or indemnities in respect of any
third party (provided that any such encumbrances or guarantees
must be cancelled by Completion pursuant to clause 13);
(v) institute, settle or agree to settle any material legal
proceedings relating to the business, save for debt collection
in the ordinary course of business;
provided that the Seller and the Company shall be entitled to do any of
the things specified in this clause with the prior written consent of the
Purchaser, not to be unreasonably withheld. The Purchaser will be deemed
to be unreasonably withholding consent if not carrying out any of the
activities in this subclause will damage the business of the Company.
3. COOPERATION
During the period between the Signing Date and Completion, both the Seller
and the Purchaser shall cooperate with the Purchaser to reach an
expeditious and practical completion of the Transaction.
In this respect, and if the Purchaser would so request, the Seller shall
take the adequate steps to procure the change of the corporate year
("ejercicio social") of all the Group Companies that Purchaser indicates,
before Completion. The Purchaser will provide administrative support to
the Seller for this purpose.
The Seller shall also facilitate the identification of assets of the Group
Companies and the status of the process of cancellation of guarantees.
The Seller shall also take on the Signing Date the necessary measures for
the following to be achieved by Completion:
(a) regularisation of any deficiencies in compliance with Foreign
Investments regulations;
(b) legalisation and updating of all corporate books of the Companies
(including, in particular, the Registry Books of Shares and the
Registry Book of Participations);
(c) deposit of the annual accounts of the Group Companies that should
have been deposited but have not yet been deposited with the
Commercial Registry.
(d) restoration of the net worth of the Group Companies that are under a
dissolution cause ("causa de disolucion").
(e) formalisation of any legal documents as may be necessary to clarify
that the Company is the holder of all exploitation rights ("derechos
de explotacion") over the AHM Software world-wide and for the whole
term of their legal protection.
4. STOCK OF UNITED SURGICAL PARTNERS INTERNATIONAL INC.
The Purchaser undertakes that in the period prior to Completion it shall
not and shall procure that the members of the Purchaser's Group and its
and their respective agents,
56
employees and advisers having actual knowledge of the matters which are
the subject of this Agreement shall not deal in any manner or enter into
any trade or any agreement concerning or relating to the stock of United
Surgical Partners International Inc.
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SCHEDULE 8
COMPLETION
1. AT COMPLETION:
1.1 On the date of Completion (but prior to the execution of the Transaction)
the Seller shall execute a notarial deed cancelling all security
associated with the Seller's Group Credit Facility and will at that time
also deliver to the Purchaser a letter from the Seller's Group Credit
Facility's Agent releasing the Seller and the Group Companies from any
obligation or liability in connection with the Seller's Group Credit
Facility, without prejudice and subject to clause 13.
1.2 The Seller shall procure (or shall have procured) the release by the
relevant secured parties of any existing pledge, lien and charge over the
Participations, and the shares and quotas of the Subsidiaries and of the
security over the assets of the Group Companies;
1.3 The Seller shall procure that the Company, its Subsidiaries and the
Management Members repay in cleared funds all debt together with interest
owed at Completion to any other company in the Seller's Group;
1.4 The Parties shall appear before the Notary and execute the Notarial
Transfer Deed and the Disclosure Letter;
1.5 Upon execution of the Notarial Transfer Deed, the Seller shall produce:
(a) sufficient powers of attorney required for the execution and
completion of the Agreement in a public deed; and
(b) the public deeds ("polizas or escrituras") which evidence the
Seller's title to the Participations in order for the notary public
to record the transfer of the Participations in those public deeds.
1.6 Upon execution of the Notarial Transfer Deed, the Purchaser shall:
(a) produce sufficient powers of attorney required for the execution and
completion of the Agreement in a public deed; and
(b) pay the Price to the Seller by way of banking cheques or bank
transfer to the account designated by the Seller procuring that the
value date of such payment is, if possible, the date of Completion.
1.7 The Seller shall deliver to the Purchaser or its representatives such
evidence as is reasonably necessary to demonstrate:
(a) such waivers or consents as may be necessary to enable the Purchaser
to become the owner of all the Participations;
(b) the resignations of all the directors of the Company;
(c) evidence of the cancellation of existing inter-company agreements
between the Company and the Seller's Group.
1.8 The Seller shall deliver to the Purchaser or its representatives:
(a) the updated registry books of members or shareholders ("Libro
Registro de Socios o de Acciones Nominativas") of the Group
Companies.
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1.9 The Seller shall deliver to the Purchaser any letters of resignation of
directors of the Group Companies who are employees in the Seller's Group
as required pursuant to the foregoing. The Purchaser undertakes to procure
acceptance by the Group Companies of these resignations and their approval
of the management carried out by such directors up to Completion.
1.10 The Parties shall sign and submit duly completed forms (D1A and D1B) to
declare the Transaction to the Ministry of Economy's registry of foreign
investments.
1.11 The Parties shall give effect to the provisions of clause 10 of this
Agreement.
1.12 The Seller shall provide a certificate signed by the secretary of the
Board of the Company, with the approval of its Chairman, stating that all
corporate and contractual requirements for the transfer of the
Participations have been complied with.
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SCHEDULE 9
AGREED FORM OF NOTARIAL DEED OF TRANSFER
[To be agreed by Completion]
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DATA ROOM DOCUMENTS
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INTERPRETATION
1. In this Agreement:
"3-MONTH EURIBOR" in relation to any amount on any day, means:
(a) the rate per annum calculated and (rounded upwards to five decimal
places) published or reported on Telerate page 248 (or such other
screen or page as may replace that screen or page on that service)
or about 12.00 p.m. on the second Business Day before such day as
being the interest rate per annum offered in the European inter-bank
market for deposits in Euro in an amount comparable with such amount
for a three month period; or
(b) if the service in (i) above is not available, the rate per annum
determined by the Party to whom monies are owed to be equal to the
arithmetic mean (rounded upwards to five decimal places) of the
rates (as notified to such Party) at which each of three leading
banks in the Madrid market were offering deposits in Euro in an
amount comparable with the relevant amount for a three month period
at or about 12.00 p.m. on the second Business Day before such day;
"ACCOUNTANTS" has the meaning given to it in section 1.4 of the schedule
headed "Completion Balance Sheet", Part A.
"ACCOUNTS" means:
(a) the Group Companies' audited statutory individual accounts
(including the balance sheet, the profit and loss account, the
annual report ("memoria") and the management report ("informe de
gestion")) as at 31 December 2003, the Company's audited statutory
consolidated accounts (including the balance sheet, the profit and
loss account, the annual report ("memoria") and the management
report ("informe de gestion")) as at 31 December 2003 (the 31
December 2003 Audited Individual and Consolidated Accounts) and
(b) the Company's consolidated accounts (including the balance sheet and
the profit and loss account) as at 30 June 2004 (the 30 June 2004
Accounts).
"ACCOUNTS DATE" means 31 December 2003 in relation to the 31 December 2003
Audited Individual and Consolidated Accounts, and 30 June 2004 in relation
to the 30 June 2004 Accounts.
"ADVANCED PAYMENT" has the meaning given to it in subclause 6.2(a).
"AGENT" means Suntrust Bank.
"AGREEMENT" means this document and all the schedules and annexes referred
to in it.
"ASSOCIATED COMPANIES" means a company in which the Company has a direct
or indirect participating interest and which is not a Subsidiary, basis
information concerning each such company being set out in part B of the
schedule headed "Subsidiaries and Associated Companies".
"BALANCE SHEET" Items for the Completion Price Adjustment has the meaning
given in Part E of the Schedule headed "Completion Balance Sheet".
"BUSINESS DAY" means a day (other than Saturday or Sunday) on which banks
are generally open in Madrid for normal business.
"CAPITAL EXPENDITURE ADJUSTMENT" or "CEA" has the meaning given to it in
the Schedule headed "Completion Balance Sheet", Part D.
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"CLASS A PARTICIPATIONS" has the meaning given to it in the Recital A.
"CLASS B PARTICIPATIONS" has the meaning given to it in the Recital A.
"CLOSING GROSS TANGIBLE AND INTANGIBLE ASSETS" has the meaning given to it
in the Schedule headed "Completion Balance Sheet", Part D.
"CLOSING NET DEBT" has the meaning given to it in the Schedule headed
"Completion Balance Sheet", Part D.
"CLOSING OTHER ASSETS AND LIABILITIES" has the meaning given to it in the
Schedule headed "Completion Balance Sheet", Part D.
"CLOSING WORKING CAPITAL" has the meaning given to it in the Schedule
headed "Completion Balance Sheet", Part D.
"COMPANY" has the meaning given to it in the Recital A.
"COMPLETION" means the day when the Transaction is completed and the
ownership and risk over the Participations is transferred to the
Purchaser, subject to clause 9 and the schedule headed "Completion".
"COMPLETION ADJUSTMENT" has the meaning given to it in clause 7.2.
"COMPLETION BALANCE SHEET" has the meaning given to it in schedule headed
"Completion Balance Sheet".
"COMPLETION PRICE" has the meaning given to it in the Schedule headed
"Completion Balance Sheet", Part D.
"DAMAGES" means any damages limited to direct loss and loss of profit
("dano emergente y lucro cesante"), attributable to a Breach of Warranties
under a valid Warranty Claim and suffered by any Group Company including
any amount by which the net worth ("patrimonio") of any Group Company or
the Group is lower than that reflected in the corresponding Accounts.
Damages will have to be duly evidenced ("debidamente probados"), and will
be payable by the Seller:
(a) when the Damages are accepted by the Seller or
(b) when the Damages arise from a Warranty Claim that is not a Third
Party Claim and disagreement exists between the Parties, when the
Damages are confirmed in an arbitration award according to clause
19; or
(c) when the Damages arise from a Third Party Claim, (a) when a court or
arbitral resolution is issued against the relevant Group Company or
Associated Company or (b) when the matter is settled by the relevant
Group Company or Associated Company, and
(d) when the Damages arise from a Third Party Claim related to Tax, or
any labour or other administrative matter, at the time when the
relevant Group Company or Associated Company is obliged to make a
payment in relation to such Third Party Claim.
Any Damages shall be calculated pro rata to the direct or indirect
participation of the Purchaser in the Transaction Company in respect of
which there has been a breach of the Warranties, except when they refer to
any of the Group Companies, in which case the
63
Damages to be compensated shall be the whole Damages suffered by the
Purchaser or the relevant Group Company.
"DAMAGES PAYMENT" has the meaning given in section 9 of the schedule
headed "Limits on Warranty Claims".
"DATA ROOM DOCUMENTS" means the documents listed in the Schedule headed
"data room documents".
"DATA ROOM" has the meaning given in Recital (E).
"DETERMINATION DATE" has the meaning given to it in the schedule headed
"Completion Balance Sheet".
"DISCLOSURE LETTER" means the letter of the same date as the date of this
Agreement and as updated on Completion from the Seller to the Purchaser as
further described in paragraph 3 of the schedule headed "Seller's
Warranties" provided, however, that no Disclosure shall be deemed to be
made on Completion with regards to matters having occurred prior to the
Signing Date or known to the Seller prior to the Signing Date.
"DRAFT COMPLETION BALANCE SHEET" has the meaning given to it in section
1.1 of the schedule headed "Completion Balance Sheet" Part A.
"DUE DILIGENCE" has the meaning given to it in Recital D.
"EXCESS RECOVERY" has the meaning given in section 9 of the schedule
headed "Limits on Warranty Claims".
"FACILITIES" means the financing package provided in relation to the
Transaction.
"GROUP COMPANIES" means the Company and the Subsidiaries.
"INVESTMENT GROUP" means Jenebe International S.a.r.l., Delphirica
Investments S.a.r.l., Alosem Sociedad Civil, Tesalia Sociedad Civil,
Capital Stock S.C.R., S.A., or any company belonging to their respective
groups, as defined in Section 42 of the Commercial Code and Section 4 of
the Law on Securities Market ("Ley del Xxxxxxx de Valores").
"ITEMS" are the items mentioned in the Balance Sheet Items for the
Completion Price Adjustment in the Schedule headed "Completion Balance
Sheet" Part B.
"MANAGEMENT MEMBERS" has the meaning given to it in the schedule headed
"The Company".
"MANDATED ARRANGER" means ING Bank NV, London Branch.
"MATERIAL ADVERSE CHANGE" means any event or circumstance (or any
combination thereof), which in the reasonable opinion of the Mandated
Arranger has materially adversely affected or could materially adversely
affect, during the period from the Signing Date to the Completion: (i) the
business, condition (financial or otherwise), operations, performance,
assets and rights of the Group Companies taken as a whole; (ii) the
performance, by the Group Companies taken as a whole, of their relevant
obligations to third parties, or (iii) the international or the syndicated
loan market in Spain when the relevant event or circumstance is due to an
exceptional cause of notorious magnitude which could materially prejudice
syndication of the Facilities.
"NEGATIVE PRICE ADJUSTMENT" has the meaning given to it in clause 7.2.
"NET DEBT ADJUSTMENT" or "NDA" has the meaning given to it in the Schedule
headed "Completion Balance Sheet", Part D.
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"NOTARIAL DEED OF TRANSFER" means the notarial deed to be executed on
Completion to raise to public document status this Agreement and the
Disclosure Letter in order to complete the Transaction, such notarial deed
to be substantially in the form of the schedule headed "Agreed Form of
Notarial Deed of Transfer".
"NOTARY" means the notary public of Madrid to be designated by the Buyer.
"OPENING GROSS TANGIBLE AND INTANGIBLE ASSETS" has the meaning given to it
in the Schedule headed "Completion Balance Sheet", Part D.
"OPENING NET DEBT" has the meaning given to it in the Schedule headed
"Completion Balance Sheet", Part D.
"OPENING OTHER ASSETS AND LIABILITIES" has the meaning given to it in the
Schedule headed "Completion Balance Sheet", Part D.
"OPENING WORKING CAPITAL" has the meaning given to it in the Schedule
headed "Completion Balance Sheet", Part D.
"OTHER ASSETS AND LIABILITIES ADJUSTMENT" or "OALA" has the meaning given
to it in the Schedule headed "Completion Balance Sheet", Part D.
"PARTICIPATIONS" has the meaning given to it in the Recital A.
"PARTIES" means the Seller and the Purchaser.
"PARTY" means either the Seller or the Purchaser as appropriate.
"PAYMENT AT COMPLETION" has the meaning given to it in clause 6.2(a).
"POSITIVE PRICE ADJUSTMENT" has the meaning given to it in clause 7.1.
"PRICE" has the meaning given to it in clause 6.
"PURCHASER" has the meaning given to it on page one of the Agreement.
"PURCHASER'S GROUP" means the Purchaser and any company within its group,
as defined in Section 42 of the Commercial Code and Section 4 of the Law
on Securities Market ("Ley del Xxxxxxx de Valores").
"REFERENCE BALANCE SHEET" means the consolidated balance sheet of the
Company at 30 June 2004, copy of which is attached in the Schedule headed
"Reference Balance Sheet", Part B, including the Items detailed in the
Balance Sheet Items for the Completion Price Adjustment in Part E of the
same Schedule.
"RELIEF" means any loss, relief, allowance, set-off, deduction, right to
repayment or credit or other relief of a similar nature, granted by or
available in relation to Tax pursuant to any legislation or otherwise.
"SELLER" has the meaning given to it on page one of the Agreement.
"SELLER'S GROUP CREDIT FACILITY" means the Second Amended and Restated
Credit Agreement, a credit agreement as finally amended on 7 November 2002
by means of which USP Domestic Holdings, Inc and the Seller (the debtors)
were granted by different financial entities (being Suntrust Bank the
agent for all of them) revolving loans, letter of credit and swing line
loans up to USD 115,000,000 with maturity date as of 7 November 2005 .
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"SELLER'S GROUP CREDIT FACILITY" means the Second Amendment to the Second
Amended and Restated Credit Agreement, a credit agreement as finally
amended on 1 August 2003 by means of which USP Domestic Holdings, Inc and
the Seller (the debtors) were granted by different financial entities
(being Suntrust Bank the administrative agent for all of them) revolving
loans, letter of credit and swing line loans up to USD 125,000,000 with
maturity date as of 7 November 2005.
"SELLER'S GROUP" means the group of companies to which the Seller belongs,
as defined in section 42 of the Commercial Code.
"SELLER'S LAWYERS" means Xxxxx & Overy, Madrid of Xxxxx xx Xxxxxxxx 00,
00000 Xxxxxx, Xxxxx.
"SIGNING DATE" means the date of this Agreement first mentioned on page
one of this Agreement.
"SPANISH GAAP" means generally accepted accounting principles and
practices in Spain.
"SUBSIDIARY" means a subsidiary of the Company for the purposes of article
42 of the Spanish Commercial Code ("Codigo de Comercio"), basis
information concerning each subsidiary of the Company being set out in
part A of the schedule headed "Subsidiaries and Associated Companies".
"SUPPLEMENTARY REPORT" means the supplementary legal due diligence report
prepared by Xxxxx & Overy entitled "Project Saturn - Legal Due Diligence
Report- Supplementary Appendix" dated 22 July 2004.
"TAX RETURN" means any return, computation, assessment, report, document,
form, declaration, claim for refund, information report or return,
statement, supplementary or supporting schedules or other information or
correspondence filed with any Taxation Authority with respect to Taxes.
"TAX, TAXES OR TAXATION" means all forms of taxation whether direct or
indirect and whether levied by reference to income, profits or gross
receipts, gains, net wealth, asset values, turnover, added value, sales,
goods and services, use, real or personal property, capital stock,
license, branch or other reference and statutory, governmental, state,
provincial, local or municipal impositions, duties, fees, imposts,
contributions, rates and levies, whenever and wherever imposed and all
deductions or withholdings for or on account of Tax from payments required
by law to be made by the Company all penalties, fines, assessments,
additions, charges, costs and interest relating thereto and shall include
taxes treated as, or deemed to be, payable and taxes on deemed profits,
income and gains.
"TAXATION AUTHORITY" means any taxing or other authority competent to
impose, administer, audit or collect any Taxes.
"THIRD PARTY CLAIM" has the meaning given in section 7 of the schedule
headed "Limits on Warranty Claims".
"THIRD PARTY SUM" has the meaning given in section 9 of the schedule
headed "Limits on Warranty Claims".
"TRANSACTION COMPANIES" means the Group Companies and the Associated
Companies.
"TRANSACTION" has the meaning given to it in clause 4.1.
"VENDOR'S FINANCIAL DUE DILIGENCE REPORT" means the Seller's due diligence
report prepared by Ernst & Young dated 28 June 2004.
66
"VENDOR'S LEGAL DUE DILIGENCE REPORT" means the legal due diligence report
prepared by Xxxxx & Xxxxx entitled "Project Saturn - Legal Due Diligence
Report" and dated 1 July 2004.
"WARRANTIES" means the warranties on the part of the Seller contained in
clause 11 and the schedule headed "Seller's Warranties".
"WARRANTY CLAIM" means a claim by the Purchaser for Damages due to any
breach or alleged breach of any of the Warranties.
"WORKING CAPITAL ADJUSTMENT" or "WCA" has the meaning given to it in the
Schedule headed "Completion Balance Sheet", Part D.
2. In this Agreement any reference, express or implied, to an enactment
(which includes any legislation in any jurisdiction) includes references
to:
(a) that enactment as amended, extended or applied by or under any other
enactment before or after the date of this Agreement;
(b) any enactment which that enactment re-enacts (with or without
modification); and
(c) any subordinate legislation (including regulations) made (before or
after the date of this Agreement) under that enactment, as
re-enacted, amended, extended or applied as described in paragraph
(a) above, or under any enactment referred to in paragraph (b)
above,
except to the extent that any of the matters referred to in paragraphs (a)
to (c) above occurring after the date of this Agreement creates, increases
or alters the liability of the Seller under this Agreement.
3. In this Agreement:
(a) words denoting persons shall include bodies corporate and
unincorporated associations of persons;
(b) references to a natural person include his estate and personal
representatives; and
(c) subject to the sub-clause on assignments in clause 16.3 (General),
references to a Party to this Agreement include references to the
successors or assigns (immediate or otherwise) of that Party.
4. Where any provision is qualified or phrased by reference to the ordinary
course of business, such reference shall be construed as meaning the
customary course of trading for the business in the country concerned.
5. Warranties in which reference is made to the knowledge of the Seller or
which are made so far as the Seller is aware refer to facts or events
known to the Seller or which should have been known by a seller acting
with the diligence of a prudent businessman ("ordenado comerciante").
6. References to "Euro" or "E" are to the currency introduced at the start of
the third stage of European economic and monetary union pursuant to the
Treaty establishing the European Community, as amended which is the lawful
currency in Spain.
7. Where there is any inconsistency between the definitions set out in this
schedule and the definitions set out in any clause or schedule, then for
the purposes of construing such clause or schedule, the definitions set
out in such clause or schedule shall prevail.
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8. The singular shall include the plural and vice versa and the masculine
shall include the feminine and vice versa.
9. Where any provision of clause 11.1 or of the schedule headed "Seller's
Warranties" or the schedule headed "Pre-Completion" is qualified or
phrased by reference to materiality, such reference shall, refer to a
matter having an economical consequence involving damage of Euro 100,000
or more.
10. Although the Agreement is written in English, words appearing in Spanish
in italics shall have their accepted meanings under Spanish law.
Paragraphs 1 to 10 above apply unless the contrary intention appears.
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LIST OF EMPLOYEES
69
