EXHIBIT 10.01
SHARE SALE AND PURCHASE AGREEMENT
Between
Perbio Science International Netherlands B.V.
and
Cidron Group AB
regarding
the sale and purchase of all outstanding shares in
Atos Medical Holding AB
Advokatfirman Hammarskiold & Co
Skeppsbron 42
XX Xxx 0000
XX-000 00 Xxxxxxxxx
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TABLE OF CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATIONS...................................................... 4
2. SALE AND PURCHASE.................................................................... 8
3. PURCHASE PRICE....................................................................... 8
4. CONDITIONS PRECEDENT................................................................. 11
5. COVENANTS............................................................................ 12
6. COMPLETION........................................................................... 14
7. REPRESENTATIONS AND WARRANTIES OF THE VENDOR......................................... 16
8. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER...................................... 21
9. REMEDIES............................................................................. 21
10. INTERIM MEASURES..................................................................... 22
11. COSTS AND EXPENSES................................................................... 23
12. CONFIDENTIALITY...................................................................... 23
13. ANNOUNCEMENTS........................................................................ 24
14. ASSIGNMENTS.......................................................................... 24
15. ENTIRE AGREEMENT AND AMENDMENTS...................................................... 24
16. NOTICES.............................................................................. 24
17. INVALIDITY........................................................................... 25
18. WAIVER............................................................................... 26
19. GOVERNING LAW AND DISPUTES........................................................... 26
LIST OF EXHIBITS
EXHIBIT DESCRIPTION
Exhibit 1.1 (a) "Benchmark Net Working Capital" calculation
Exhibit 1.1 (b) "Net Working Capital calculation"
Exhibit 1.1 (c) "Subsidiaries"
Exhibit 5.1(a) Planned actions outside ordinary course
Exhibit 6.2(v) List of Vendor appointed Directors
Exhibit 7.1.1 Share Capital of the Group
Exhibit 7.5 (i) Agreements outside ordinary course
Exhibit 7.10.1 The Intellectual Property Rights
Exhibit 7.10.3 Current infringements of the Intellectual Property Rights
Exhibit 7.11 Material Contracts
Exhibit 7.14.3 Transaction Bonuses.
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SHARE SALE AND PURCHASE AGREEMENT
This Share Sale and Purchase Agreement is made on the 7th day of March 2005 by
and between on the one hand;
Perbio Science International Netherlands B.V., a company incorporated under the
laws of the Netherlands and whose registered office is at Xxxxxxxxxxxx 00, XX,
0000 XX Xxxxxxxxx, xxx Xxxxxxxxxxx
(hereinafter referred to as the "Vendor"), and on the other hand;
Cidron Group AB, org. no. 556669-5820, a company incorporated under the laws of
Sweden and whose registered office is at Xxxxxxxxx 0X, 000 00 Xxxxxxxxx, Xxxxxx
(hereinafter referred to as the "Purchaser").
WHEREAS;
A. The Vendor is the owner of 1,000 shares (hereinafter referred to as the
"Shares") representing 100% of the capital and votes in Atos Medical
Holding AB; (hereinafter referred to as the "Company").
B. The Company is part of the Xxxxxx Scientific International Inc. Group and
the Vendor is the parent company of the Swedish Medical Device business
within the Xxxxxx Scientific International Inc. Group.
C. The Purchaser is a special purpose entity indirectly owned by Nordic
Capital V Ltd.
D. The Purchaser desires to purchase and the Vendor wishes to sell the
Shares.
E. Representatives of Seller and Purchaser have specifically agreed that such
sale and purchase shall be made with only a limited number of basic
representations and warranties made by the Vendor that survive completion
of the sale and purchase of the Shares.
NOW THEREFORE THE PARTIES HEREBY AGREE as follows:
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1. DEFINITIONS AND INTERPRETATIONS
1.1 In this Agreement and in the Exhibits hereto, which shall form part of
this Agreement, the following words and expressions shall have the
meanings respectively set out opposite them;
"Accounting Principles" shall mean the US GAAP accounting principles that have
been consistently applied by the Group since September
2003 for purposes of the preparation of the Xxxxxx
internal monthly GMM reports;
"Agreement" shall mean this Share Sale and Purchase Agreement and
all the schedules and exhibits attached hereto, each of
which constitutes an integral part of this Agreement;
"Benchmark Net
Cash/Debt" shall mean the estimated Net Cash/Debt as of Completion,
which shall be USD nil (0.00);
"Benchmark Net
Working Capital" shall mean the average level of Net Working Capital for
the Group during 2004. The Benchmark Net Working Capital
shall thus be SEK 27.5 million, as calculated in
accordance with Exhibit 1.1 (a);
"Business Day" Any day (other than a Saturday or Sunday) on which banks
in Stockholm are open for a full range of banking
transactions;
"Company" shall have the meaning set out in the introductory
paragraph (A) above;
"Company's Auditors" shall mean the auditing firm Deloitte & Touche with Xxxx
Lembrer Astrom as main responsible auditor;
"Completion" shall mean the completion of this Agreement in
accordance with Section 6 below;
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"Completion Auditor" shall have the meaning set out in Section 3.3(b) below;
"Completion Date" shall mean the date on which Completion occurs or is
deemed to have occurred in accordance with this
Agreement as set forth in Section 6.1 below;
"Completion Net
Cash/Debt" shall have the meaning set out in Section 3.3 below;
"Completion Net
Working Capital" shall have the meaning set out in Section 3.3 below;
"Completion Payment" shall have the meaning set out in Section 3.1 below;
"Completion Statement" shall have the meaning set out in Section 3.3 below;
"Conditions Precedent" shall mean the conditions set out in Section 4.1 below;
"Final Purchase Price" shall mean the final purchase price for the Shares as
established in accordance with Section 3.3 below;
"Group" shall mean the Company and the Subsidiaries jointly;
"Group Companies" shall mean the Company and the Subsidiaries;
"Intellectual Property
Rights" shall mean the registered patents, the registered and
unregistered trademarks, copyrights, designs, trade and
business names, including applications for any of these
rights as listed in Exhibit 7.10.1;
"Key Employees" shall mean Xxxxx Xxxxxxx, Xxxxx Xxxxxxxxx, Jan-Xxx
Xxxxxxx and Xxxxx Xxxxxxx;
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"Material Contracts" shall mean each of the contracts which have a
material effect on the results and financial condition
of the Group Companies, as set out in Exhibit 7.11;
"Net Cash/Debt" shall mean (i) cash and marketable cash instruments with
maturity not more than 12 months minus (ii) long term
interest bearing liabilities, short term interest
bearing liabilities, accrued unpaid income taxes (net of
any income tax receivable) related to the income tax
year ending December 31 2004, minority interest
liability, declared unpaid dividends and decided unpaid
group contributions, as determined in accordance with
the Accounting Principles;
"Net Working Capital" shall mean the difference between current assets and
current liabilities to be calculated based on the line
items set out in Exhibit 1.1(b), as determined in
accordance with the Accounting Principles;
"Party" shall mean any of Vendor or the Purchaser;
"Parties" shall mean the Vendor and the Purchaser collectively;
"Preliminary Purchase shall mean the preliminary purchase price set out in
Price" Section 3.1 below;
"Purchaser" shall have the meaning set out in the Preamble to this
Agreement;
"Shares" shall have the meaning set out in the introductory
paragraph (A) above;
"Signing Date" shall mean the date first above written;
"XXXXXX" shall mean the Stockholm Interbank Offered Rate;
"Subsidiaries" shall mean the entities listed in Exhibit 1.1(c);
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"USD" shall mean the lawful currency of the United States of
America;
"Vendor" shall have the meaning set out in the introductory
paragraph above;
"Vendor's Knowledge" shall mean the actual knowledge of Xxxx
XxXxxxx, Xxxx Xxxxxxx and Xxxxxxx Xxxxx following their
due and careful inquiries with the Key Employees.
1.2 The following provisions shall apply to the construction and
interpretation of this Agreement and its Exhibits:
(a) References to statutes, acts and the like of whatever jurisdiction
shall include any modification, re-enactment or extension thereof
whether made before or after the signing of this Agreement and any
orders, regulations, instruments or other subordinate legislation
made there under in force from time to time;
(b) The masculine gender shall include the feminine and neuter and the
singular number shall include the plural and vice versa;
(c) References to persons shall include corporate bodies, corporate
entities, firms, unincorporated associations and partnerships;
(d) The headings are inserted for convenience only and shall not affect
the construction of this Agreement;
(e) The terms "material" or "material to the Group" and the concept of
the "material" nature of an effect upon the Group shall be measured
relative to the entire business of the Company and the Subsidiaries,
taken as a whole, as such business is currently being conducted;
(f) References to Sections, sub-sections and Exhibits are to the
Sections and sub-sections of and Exhibits to this Agreement and
include documents, etc. referred to in such Sections, sub-sections
and Exhibits;
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2. SALE AND PURCHASE
2.1 Subject to the terms of this Agreement, the Vendor shall sell and transfer
the Shares to the Purchaser and the Purchaser shall purchase the Shares
from the Vendor at Completion.
2.2 The Shares shall be sold free from all liens and encumbrances and together
with all accrued benefits and rights pertaining thereto.
3. PURCHASE PRICE
3.1 PURCHASE PRICE; COMPLETION PAYMENT
The Preliminary Purchase Price shall be (A) USD one hundred and ten
million (110,000,000) plus (B) the Benchmark Net Cash/Debt (such net
amount referred to hereinafter as the "Completion Payment"). The
Completion Payment shall be subject to the Post-Completion Adjustment in
accordance with Section 3.3 below.
3.2 PAYMENT OF THE COMPLETION PAYMENT
The Completion Payment shall be paid in full at Completion in immediately
available funds to the bank account(s) identified by Vendor.
3.3 POST-COMPLETION ADJUSTMENT OF COMPLETION PAYMENT
Within thirty (30) days after the Completion Date, Vendor shall, with the
assistance of the Company, prepare and deliver to Purchaser (A) an audited
determination of the Net Cash/Debt of the Group as of the Completion Date
without giving regard to any payments made at the Completion, prepared by
applying the Accounting Principles (the "Completion Net Cash/Debt") and
(B) an audited determination of the Net Working Capital of the Group as of
the Completion Date, prepared by applying the Accounting Principles (the
"Completion Net Working Capital"). The proposed determinations of (A) and
(B)
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hereinafter referred to as the "Completion Statement". The calculation of
the Completion Net Cash/Debt and the Completion Net Working Capital shall
be prepared by using currency exchange rates applicable as of the
Completion Date as quoted by Reuters on page 1 FED Federal Reserve Bank of
New York currency fixing rates at 10.00 am EST on the Completion Date.
(a) If Purchaser does not object to such determination by Vendor of the
Completion Net Cash/Debt and/or the Completion Net Working Capital by
written notice of objection delivered to Vendor within twenty (20) days
after Purchaser's receipt of the Completion Statement, the Completion Net
Cash/Debt and/or the Completion Net Working Capital shall be deemed final
and binding upon the Parties.
(b) If Purchaser delivers to Vendor a notice of objection in respect of the
Completion Statement and the Parties cannot agree upon the determination
thereof within fifteen (15) days of delivery of such notice of objection,
then the Purchaser shall within twenty five (25) days of delivery of the
notice of objection submit its final proposal for the determination of the
Completion Net Cash/Debt and/or the Completion Net Working Capital to the
Vendor and to KPMG acting as a completion auditor for the Parties (the
"Completion Auditor"). If the Purchaser does not submit its final proposal
for the determination of the Completion Net Cash/Debt and/or the
Completion Net Working Capital within the specified time period, the
Completion Statement shall be deemed final and binding upon the Parties.
(c) Within thirty (30) days of the submission of any dispute concerning the
determination of the Completion Statement, the Completion Auditor shall
render its decision determining the Completion Net Cash/Debt and/or the
Completion Net Working Capital. After the Completion Auditor has rendered
the decision determining the Completion Net Cash/Debt and/or the
Completion Net Working Capital, the Completion Statement determined by the
Completion Auditor shall be final and binding upon the Parties, unless
either Party within fifteen (15) days from the Completion Auditor's
decision notifies the other Party in writing of its non-satisfaction with
the
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Completion Statement and within fifteen (15) days from such notice
initiates arbitration in accordance with Section 19 below.
(d) The fees and expenses of the Completion Auditor for any determination
under this Section 3 shall be borne by the Vendor and the Purchaser
equally.
(e) Upon the final determination of the Completion Statement, the Parties
shall make the following adjustments and applicable payments (the
"Post-Completion Adjustment"):
(i) If, pursuant to such final determination, the Completion Net
Cash/Debt is less than the Benchmark Net Cash/Debt, then the
Completion Payment shall be decreased by the amount of such
difference and the Vendor shall reimburse the Purchaser such amount
in accordance with Section 3.3(f).
(ii) If, pursuant to such final determination, the Completion Net
Cash/Debt is greater than the Benchmark Net Cash/Debt, then the
Completion Payment shall be increased by the amount of such
difference and Purchaser shall pay Vendor such amount in accordance
with Section 3.3(f).
(iii) If the Completion Net Working Capital is less than SEK 25.5 million,
the Completion Payment shall be decreased by the amount of such
difference and the Vendor shall reimburse the Purchaser such amount
in accordance with Section 3.3(f) below.
(iv) If the Completion Net Working Capital is higher than SEK 29.5
million, the Completion Payment shall be increased by the amount of
such difference and the Purchaser shall pay the Vendor such amount
in accordance with Section 3.3(f) below.
(f) Any Post-Completion Adjustment shall bear interest from the Completion
Date to the date of payment thereof, at an interest rate equal to four
percent (4 %) per annum calculated on the basis of actual number of days
elapsed from the Completion Date and a 360 day year,
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and shall be paid within five (5) Business Days after the final
determination of the Completion Statement under sub-sections (a) through
(c) above by wire transfer in immediately available funds to the receiving
Party to the account(s) specified in writing by such Party.
(g) The Purchaser and the Vendor respectively shall give each and its
representatives access within normal business hours to the books and
records of the Group to enable each Party to determine the Completion
Payment, the Completion Net Cash/Debt and the Completion Net Working
Capital and to verify, control and investigate any decision rendered by
the Completion Auditor.
(h) Payments to the respective parties under this Section 3.3 shall be netted
out against each other to render a final payment from one of the Parties.
4. CONDITIONS PRECEDENT
4.1 The obligations of the Parties to complete the sale and purchase of the
Shares under this Agreement shall be subject to the fulfillment prior to
or at Completion, unless waived in writing, of each of the following
conditions precedent (the "Conditions Precedent"):
4.1.1 The obligations of the Vendor and the Purchaser are conditional upon the
obtaining of clearance or a decision not to take any further action from
the competition authorities in Germany.
4.1.2 The obligations of the Purchaser are conditional upon that there has not
occurred any event or circumstance which has a material adverse effect on
the business, financial condition, assets or prospects of the Group taken
as a whole.
4.2 Fulfillment of the Conditions Precedent
4.2.1 The Parties undertake to use all reasonable endeavors to procure the
fulfillment of the Conditions Precedent and otherwise to complete the
transaction contemplated herein.
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4.2.2 Should Completion not occur due to the non-fulfillment of the Conditions
Precedent, none of the Parties shall be under any obligation to compensate
the other Party for any losses or costs incurred as a result of the
contemplated transaction.
5. COVENANTS
5.1 From the Signing Date until Completion, the Vendor shall use its
reasonable efforts to cause the Group:
(a) to operate its business in the ordinary course consistent with past
practice, except as set out in Exhibit 5.1(a) hereof;
(b) to preserve the relationships with suppliers, customers,
distributors, cooperation partners and others having business
dealings with a Group Company;
(c) to maintain its present insurance coverage;
(d) not to dispose of or encumber any of the assets of the Group other
than in the ordinary course of business;
(e) not to authorize, issue or otherwise grant any options, warrants,
conversion rights or other agreements pursuant to which a Group
Company may be required to purchase, redeem, issue or sell any
shares or other securities;
(f) to prepare the final consolidated statutory accounts of the Group in
accordance with Swedish GAAP for the financial year 2004 as soon as
practicable and take all reasonable measures to facilitate a smooth
audit of such statutory accounts.
5.2 The Vendor shall, between the Signing Date and the Completion, consult
with the Purchaser prior to taking any material decisions regarding the
Group and/or the Group Companies not previously disclosed to the Purchaser
during the course of the Purchaser's due diligence.
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5.3 The Vendor shall, between the Signing Date and the Completion, cause the
Group Companies to afford the Purchaser's employees, consultants, banks
and advisors reasonable access, at all times during normal business hours,
reasonable notice having been given, to management personnel and auditors
of the Group Companies and to the accounts, books and records of the Group
Companies. Such right of access includes discussions between the Purchaser
and the management and independent auditors of the Group Companies.
5.4 The Purchaser shall, between the Signing Date and the Completion, use all
reasonable endeavors to fulfill or procure the fulfillment of the
condition set out in Section 4.1.1 above and will notify the Vendor in
writing, immediately after it becomes aware of the satisfaction of such
conditions. The Vendor shall cooperate with and furnish information as
requested by the Purchaser in order to facilitate the fulfillment of the
condition set out in Section 4.1.1.
In the event the relevant competition or other authorities would not be
prepared to give its clearance to the sale and purchase contemplated
herein, the Purchaser undertakes to negotiate in good faith with the
relevant authorities and, as the case may be, with the Vendor, in order to
obtain timely clearance and to take any reasonable measures required by
the authorities in order for the said sale and purchase to not be
prohibited or restricted in any material way. For the avoidance of doubt,
the Purchaser's undertaking pursuant to the preceding sentence does not
include any restructuring of or changes in the business operations of the
Purchaser, affiliates of the Purchaser, the Company or any of the
Subsidiaries. Measures taken pursuant to this Section 5.4 shall not
entitle the Purchaser to any compensation of any kind from the Vendor. The
Vendor shall be given the opportunity to participate in all negotiations
with the competition authorities, except for negotiations pertaining to
the business of the Purchaser and the affiliates of the Purchaser.
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6. COMPLETION
6.1 Completion shall take place, unless otherwise agreed in writing between
the Parties, at the offices of Hammarskiold & Co in Stockholm, Sweden on
(i) the eighth Business Day following the satisfaction or waiver of the
Conditions Precedent in Section 4.1.1 with effect as of March 31, 2005,
provided that such Condition Precedent has been satisfied or waived on or
prior to March 31, 2005, or (ii) on the last Business Day of a calendar
month occurring first but not earlier than eight (8) Business Days after
the date upon which the Condition Precedent in Section 4.1.1 is satisfied
or waived, if such Conditions Precedent have been satisfied or waived
after March 31, 2005, (the "Completion Date").
If Completion has not occurred on or before May 31, 2005, this Agreement
shall automatically become null and void and neither Party shall have any
claims against each other by reason thereof.
6.2 At Completion, the Vendor shall:
(i) unless Annual General Meetings of each of the Group Companies have
already been held prior to Completion, hold Annual General Meetings
of each of the Group Companies;
(ii) deliver the share certificates representing the Shares, duly
endorsed to the Purchaser; free and clear of any and all liens,
charges and other encumbrances;
(iii) deliver the original share register (Sw. aktieboken) of the Company;
(iv) deliver to the Purchaser the share registers and share certificates,
if such certificates have been issued, representing all shares
directly and indirectly held in the Subsidiaries;
(v) deliver to the Purchaser written resignations, in agreed form, by
each retiring member and deputy member of the board of directors of
the Group Companies listed in Exhibit 6.2(v) hereof,
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including a confirmation from each such person that he has no claims
against the relevant Group Company resulting from his position as a
member or deputy member of the board of directors of any of the
Group Companies; and
(vi) deliver to the Purchaser the final audited consolidated statutory
accounts of the Group prepared in accordance with Swedish GAAP for
the financial year 2004.
6.3 At Completion, the Purchaser shall:
(i) pay to the Vendor the Completion Payment in accordance with Section
3.1 above;
(ii) procure that the debt of Atos Medical AB to Perbio Science Sweden
Holdings AB in the amount of approximately SEK 61,655,000 resulting
from the group contribution as of December 31, 2004 is paid in full
to Perbio Science Sweden Holdings AB by way of transfer of
immediately available funds.
6.4 At the Completion Date, the Vendor shall cause a shareholders meeting and
a board meeting to be held in each of the Group Companies allowing the
Purchaser to appoint new directors and deputy directors and to appoint
company signatories. The Purchaser shall prepare the minutes of said
meetings as well as the necessary ancillary documentation, and the
Purchaser shall procure that the documentation, immediately following said
meetings, is submitted to the relevant registration authorities, including
the Swedish Companies Registration Office.
6.5 At the next annual general meeting of each of the Group Companies, the
Purchaser undertakes to grant the directors in the respective Group
Companies who have retired the last fiscal year and in connection with the
Completion, discharge from liability for their administration until the
Completion Date (or the earlier date of the retirement), however, only
provided that, in the auditors' reports for the relevant period, the
Company's auditors do not recommend against such discharges.
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6.6 To evidence that Completion has taken place in accordance with the terms
and conditions set forth in this Agreement, the Vendor and the Purchaser
shall sign a completion memorandum, outlining and evidencing the actions
taken and the documents delivered in connection with the Completion.
7. REPRESENTATIONS AND WARRANTIES OF THE VENDOR
Prior to the date hereof, the Purchaser has conducted a thorough due
diligence investigations, including but not limited to, a legal,
accounting and business due diligence with respect to the Group together
with the Purchaser's professional advisers, to the full satisfaction of
the Purchaser.
The Vendor represents and warrants to the Purchaser, subject to all
matters sufficiently disclosed by the Vendor to the Purchaser and its
advisors in the Data Room and otherwise in writing during the course of
the Purchaser's due diligence investigation, that the following statements
are true and correct as of the Signing Date and, in respect of the
statements in Sections 7.1, 7.2 and 7.3 only, will be true and correct
also as of the Completion:
7.1 SHARE CAPITAL AND THE GROUP
7.1.1 The shares of the Group Companies have been duly authorized, validly
issued, fully paid up, and are owned, directly and indirectly, by the
Vendor, all as set out in Exhibit 7.1.1 hereto.
7.1.2 There is no agreement or commitment outstanding which calls for the
allotment, issue or transfer of or accords to any person the right to call
for the allotment or issue of, any shares (including the Shares) or
securities of any of the Group Companies.
7.1.3 Each Group Company is duly organized and validly existing under the
relevant laws of its respective country of incorporation and has the full
power and authority under its articles of association to carry on its
business as currently being conducted.
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7.1.4 Each of the Subsidiaries is a wholly owned subsidiary (or a majority owned
subsidiary in the case of Platon Medical Ltd.) of a Group Company and no
Group Company owns any shares or other securities or participation
interest of any kind in any other company or entity.
7.2 TITLE TO SHARES
The Vendor owns and has good and marketable title to the Shares, which are
fully paid, free from all liens, charges and other encumbrances. The
shares of the Subsidiaries are free from all liens, charges and other
encumbrances.
7.3 CAPACITY
7.3.1 This Agreement and the transactions contemplated hereby have been duly
authorized by all necessary actions on the part of the Vendor.
7.3.2 The Vendor warrants that it has all powers to enter into and to perform
its obligations under this Agreement which, when executed, will constitute
binding obligations of the Vendor in accordance with its terms.
7.4 BOOKS AND RECORDS
Since September 2003, the statutory books (including all register and
minute books) of the Group Companies have been maintained in all material
respects in accordance with applicable law and are, in all material
respects, true, correct and complete.
7.5 CONDUCT OF BUSINESS
Except as contemplated by this Agreement, since December 31, 2004 the
business of the Group has been conducted in all material respects in the
ordinary course of business consistent with past practice and since such
date:
(i) except as set forth in Exhibit 7.5(i), no Group Company has entered
into any agreement or undertaking outside the ordinary course of
business or which are not on arms length terms;
(ii) no Group Company has sold or transferred or committed to sell or
transfer any material asset other than in the ordinary course of
business; and
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(iii) no Group Company has declared any dividends or made any other
non-cash payments or distributions to any person or entity outside
the Group (including, but not limited to, group contributions) in
respect of any shares or other equity interests.
7.6 LICENSES AND PERMITS
To the Vendor's Knowledge, the Group Companies have all the necessary
material licenses, permits and authorizations to carry on their
businesses as presently being conducted and the Group has not received
any written notices of non-compliance or to the effect that any such
material license, permit or authorization is being revoked, withdrawn or
not renewed.
7.7 COMPLIANCE WITH LAWS
To the Vendor's Knowledge, the Group Companies have in all material
respects complied with all applicable laws, regulations and orders
relating to the business of the Group and otherwise.
7.8 REAL ESTATE
The Group does not own any real property.
7.9 ENVIRONMENTAL MATTERS
To the Vendor's Knowledge, no Group Company has since September 2003
received any notice of any breach of any applicable environmental laws,
regulations or orders.
7.10 INTELLECTUAL PROPERTY
7.10.1 The Intellectual Property Rights set out in Exhibit 7.10.1 comprise all
material Intellectual Property Rights that are owned by the Group.
7.10.2 To the best of the Vendor's Knowledge the Group has not been notified of
any third party challenging the validity of any Intellectual Property
Rights and neither has to the best of Vendor's Knowledge the Group
received any written claim whether for infringement, damages or otherwise
made by any third party which relates to the ownership or use of the
Intellectual Property Rights by the Company.
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7.10.3 Except as set forth in Exhibit 7.10.3, to the Vendor's Knowledge, there
is no ongoing infringement of any material Intellectual Property Rights.
7.11 MATERIAL CONTRACTS
To the Vendor's Knowledge, no Group Company is in material breach of any
provision of, or in material default under, any Material Contract, and
none of the Group Companies has received, or delivered itself, any
notice of termination of any Material Contract, except in respect of the
agreement with Obtech Medical AG. To the Vendor's Knowledge no other
party is in default under or in breach or violation of, any Material
Contract.
7.12 TAXES
The Group has filed all tax returns required to be filed and has duly
paid all taxes required to be paid.
7.13 LITIGATION
Except as disclosed in Exhibit 7.10.3 and other than in respect of
normal debt collection proceedings, no Group Company is engaged in any
litigation or arbitration, whether as a plaintiff, defendant or
otherwise which could have a material adverse effect on the Group and,
to Vendor's Knowledge, no litigation or arbitration, by or against a
Group Company is threatened which could have a material adverse effect
on the Group.
7.14 EMPLOYEES
7.14.1 There is no actual or, to the Vendor's Knowledge, threatened (i) labor
strike, work stoppage or lockout against any Group Company; or (ii)
unfair labor practice charge or complaint against any Group Company
before any governmental authority.
7.14.2 There are no severance agreements or arrangements with respect to any
Key Employee other than as reflected in the Data Room. Other than as
reflected in the Data Room, there are no material plans or programs
relating to retirement, compensation, incentive, bonus, stock
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option, stock purchases or restricted stock operated by any Group
Company.
7.14.3 Except as described in Exhibit 7.14.3, no bonus or similar arrangement
related to the consummation of the transaction contemplated by this
Agreement exists with respect to any employee of the Group.
7.15 BROKERS
No broker, finder or investment banker is entitled to any brokerage fee,
finder's fee or other fee from the Group in connection with the
transaction contemplated by this Agreement.
7.16 INTRA GROUP ARRANGEMENTS
No Group Company is a party to any contract or arrangement of any kind
outside the ordinary course of business with the Vendor or its
affiliates or any director, officer or employee of the Vendor.
7.17 NO CONFLICT
To the Vendor's Knowledge, the execution of this Agreement by the
Vendor, the consummation of the transactions contemplated hereby and the
fulfilment of the terms hereof will not violate any applicable law,
rule, regulation, judgment, decree, order or approval of any court or
governmental authority applicable to the Vendor or the Group Companies,
or by which their respective assets are bound or affected.
7.18 INFORMATION
The Data Room has been compiled by the Vendor based on questions and
requests from the Purchaser after due inquiry with the Key Employees. To
the Vendor's Knowledge, the information provided in the Data Room is,
taken as a whole, in all material respects, true and correct and not
misleading and no material information requested by the Purchaser to
which the Vendor had access has been withheld by the Vendor.
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8. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
8.1 The Purchaser is duly organized and validly existing under the laws of
Sweden, having all licenses, authorizations and corporate powers to
carry on its business as now conducted and to enter into this Agreement,
which, when executed, will constitute binding obligations on the
Purchaser in accordance with its terms.
8.2 The Purchaser is neither prohibited nor restrained by its by-laws,
articles of association or similar document, or by any agreements to
which it is a party, from entering into this Agreement and consummating
the transactions contemplated hereby, and this Agreement and the
transactions related hereto have been duly authorized by all necessary
corporate actions.
8.3 The Purchaser has no actual knowledge of any breach of any warranty in
Section 7 of this Agreement.
9. REMEDIES
9.1 Except for the warranties contained in Sections 7.1, 7.2 and 7.3, none
of the warranties contained in this Agreement shall survive after the
date hereof and no Party shall under any circumstance have any rights or
remedies directly or indirectly against the other Party or its
affiliates, officers, directors, employees, agents or representatives
for any breach of warranty contained in this Agreement nor shall the
Vendor, the Purchaser or any of their respective affiliates, officers,
directors, employees, agents or representatives have any liability on
account of such breach. Each of the Parties confirm that the principles
for establishing the purchase price for the Shares have been agreed
based on this principle.
9.2 The Vendor is, subject to what is set out below in this Section 9,
liable for breach of the warranties contained in Sections 7.1, 7.2 and
7.3. Any compensation payable by the Vendor for a breach there under
shall only be in the form of a reduction of the Final Purchase Price and
22
the Vendor's aggregate liability to compensate the Purchaser shall under
no circumstances exceed the Final Purchase Price.
9.3 The Purchaser confirms that it has not relied on any express or implied
warranty, representation, indemnity, covenant or undertaking which is
not expressly contained in this Agreement.
9.4 The remedy provided to the Purchaser under this Agreement shall be
exclusive and hence it is specifically agreed that the Vendor shall have
no other liability in respect of this Agreement including any liability
under any statute including the Swedish Sale of Goods Act (Sw. Koplagen
(1990:931)) or the International Sale of Goods Act (Sw. Lag (1987:822)
om internationella kop).
10. INTERIM MEASURES
10.1 As soon as practicable after the Signing Date, representatives of the
Vendor, the Purchaser and the CEO of the Company shall form a joint
committee with the purpose to outline any and all issues that need to be
resolved in order for the Group to be able to operate on a stand alone
basis immediately after the Completion Date. The intent is that all such
issues shall be resolved by the Group reaching separate agreements with
third parties. However, in case where such agreements cannot be reached,
each of the Vendor and the Purchaser undertake to use best efforts in
order to agree on a temporary separation agreement. Any separation
agreement shall be on arm's length terms on market conditions and shall,
unless the Parties agree otherwise, be conditioned upon Completion and
not be effective for a longer term than three months after the
Completion Date.
10.2 The Vendor agrees to extend its property insurance coverage to include
the Group for a period of thirty (30) days after the Completion Date. In
no instance shall Vendor's obligations exceed the terms or limits of its
current worldwide property policy. The Purchaser shall be responsible
for all non-covered property losses, including self-insured retentions,
and shall reimburse and indemnify the Vendor for any and all costs
incurred by the Vendor or its affiliates as a result of such continued
insurance coverage.
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10.3 The Purchaser shall procure that the Vendor is given opportunity to have
reasonable access and assistance from the Company, including but not
limited to Xxxxx Xxxxxxxxx, for the preparation of the statutory
accounts for 2004 and associated tax filings etc. of the companies
within the former Perbio Science Group during a period of nine (9)
months from the Completion Date. The Parties shall during the period
between the signing Date and the Completion Date establish the
reasonable time limits and other terms and conditions for such work and
both parties undertake to use best efforts to reach an agreement
relating hereto on arm's length terms reasonably acceptable to both
Parties.
11. COSTS AND EXPENSES
Except as expressly otherwise provided herein, the Vendor and the
Purchaser, respectively, shall bear their own costs and expenses
incurred in connection with this Agreement and the transactions
contemplated herein, whether or not such transactions shall be
completed, including, without limitation, all fees of its legal
advisors, accountants and other advisors.
12. CONFIDENTIALITY
The Vendor and the Purchaser undertake not to disclose the content of
this Agreement or any other information, whether written or oral,
including, without limitation, financial information, trade secrets,
client lists and other proprietary business information, regarding the
Company, which information is not known to the general public, unless
(i) required to do so by law or stock exchange recommendations or
regulations or (ii) such disclosure has been consented by the Vendor or
the Purchaser, as the case may be.
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13. ANNOUNCEMENTS
The Parties shall mutually determine the date and the form of any
announcement of the Purchaser's acquisition of the Shares except as may
be required by law or stock exchange recommendations or regulations in
which case such Party undertakes to inform the other Party in advance in
writing.
14. ASSIGNMENTS
This Agreement shall be binding upon and inure to the benefit of the
successors and assignees of the Parties but shall not be assignable by
any of the Parties without the prior written consent of the other Party.
15. ENTIRE AGREEMENT AND AMENDMENTS
15.1 This Agreement constitutes the entire understanding of the Parties and
supersedes all prior agreements, covenants, arrangements,
communications, representations or warranties, whether oral or written,
by any officer, employee, representative or advisor of either of the
Parties or the Company.
15.2 This Agreement may only be amended by an instrument in writing duly
executed by the Parties. No change, termination or modification of any
of the provisions of this Agreement shall be binding on the Parties,
unless made in writing in accordance with this Section 15.2.
16. NOTICES
All notices, consents and other communications required or permitted
under this Agreement shall be made in writing and be deemed to have been
duly given by the Parties if addressed and delivered by registered mail
to the addresses set forth below or to such other addresses as may be
given by written notice in accordance with this Section 16.
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If to the Vendor:
Perbio Science International Netherlands B.V.
Att: Xxxx Xxxxxxx
Xxxxxx Scientific International Inc
Xxxxxxx Xxxx
Xxxxxxx, XX 00000
XXX
with a copy to:
Advokatfirman Hammarskiold & Co
Att: Xxxxx Xxxxxxxx
Xxx 0000
000 00 Xxxxxxxxx, Xxxxxx
If to the Purchaser:
Cidron Group AB
Att: Director
C/o NC Advisory AB
Xxxxxxxxx 0X
000 00 Xxxxxxxxx, Xxxxxx
with a copy to:
White & Case Advokat AB
Att: Xxxxx Xxxxxxxxxxx
Xxx 0000
000 00 Xxxxxxxxx, Xxxxxx
17. INVALIDITY
If any term or provision in this Agreement shall be held to be illegal
or unenforceable, in whole or in part, under any enactment or rule of
law, such term or provision or part shall to that extent be deemed not
to
26
form a part of this Agreement but the enforceability of the remainder of
this Agreement shall not be affected.
18. WAIVER
No waiver by any of the Parties of any of the requirements hereof or of
any of its rights hereunder shall have effect unless given in writing
and signed by the duly authorized representatives of the other Parties.
19. GOVERNING LAW AND DISPUTES
19.1 This Agreement shall be governed by and construed in accordance with the
laws of Sweden.
19.2 Any dispute, controversy or claim arising out of or in connection with
this Agreement, or the breach, termination or invalidity thereof, shall
be finally settled by arbitration in accordance with the Rules of the
Arbitration Institute of the Stockholm Chamber of Commerce.
19.3 The place of arbitration shall be Stockholm. The language to be used in
the arbitration proceedings shall be English.
The Parties hereto have executed this Agreement on the day and year first
written above in two original copies, of which each of the Parties hereto have
taken one each.
PERBIO SCIENCE INTERNATIONAL
NETHERLANDS B.V. CIDRON GROUP AB
by by
/s/ Xxxx X. Xxxxxxx /s/ Ulf Johnansson by proxy
------------------------- -----------------------------
Xxxx X. Xxxxxxx Ulf Johnansson by proxy
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Xxxxxx Scientific International Inc. hereby represents and warrants to the
Purchaser that the statements contained in Sections 7.1, 7.2 and 7.3 are true
and correct as of the Signing Date and will be true and correct also as of the
Completion. For the avoidance of doubt, it is confirmed that Section 19 applies
to this representation and warranty.
XXXXXX SCIENTIFIC INTERNATIONAL INC.
by
/s/ Xxxx X. Xxxxxxx
-------------------------
Xxxx X. Xxxxxxx
