EXHIBIT 4.6
DATED 1998
SALE AND PURCHASE AGREEMENT
- between -
XX. XXXXXX XXXXXXX
hereinafter referred to as the "Seller"
- and -
PAREXEL INTERNATIONAL CORPORATION
hereinafter referred to as the "Purchaser"
XXXXXXXX XXXXXX
000 Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000-000 0000
Fax: 0000-000 0000
Ref: RWE/627009.01
CONTENTS
No. Heading Page
1. OWNERSHIP 1
2. SALE AND PURCHASE OF THE SHARES 1
3. PURCHASE PRICE 2
4. EFFECTIVE DATE 2
5. WARRANTIES OF SELLER 2
6. REMEDIES FOR BREACH OF WARRANTIES AND SELLERS' LIABILITY
8
7. REFERENCE TO ARBITER 10
8. COMPLIANCE WITH US LAW 11
9. NON-COMPETITION UNDERTAKING 13
10. TAXES, COSTS AND EURO 13
11. ASSIGNMENT OF RIGHTS AND UNDERTAKINGS 14
12. CONFIDENTIALITY 14
13. NOTICES 14
14. MISCELLANEOUS 15
SALE AND PURCHASE AGREEMENT
PREAMBLE
The Seller is the sole shareholder of the limited company LOGOS
GmbH, Xxxxxxxxxxxxxxx 00, 00000 Xxxxxxxx, registered in the
Commercial Register of the Amtsgericht Freiburg under no. HRB
4285 ("the Company"). The Seller also holds 75 per cent of the
shares of the limited company Translation Gesellschaft fur
wissenschaftliche Ubersetzungen mbH, Xxxxxxxxxxxxx 0, 00000
Xxxxxxxx, registered in the Commercial Register of the
Amtsgericht Freiburg unter no. HRB 4208 ("the Translation GmbH").
The Seller intends to sell his shares in the Company and his
shares in Translation GmbH to the Purchaser.
NOW, THEREFORE, the parties hereto agree as follows:
1. OWNERSHIP
1.1 Seller is the sole shareholder of the Company. The stated
and paid-in capital of the Company amounts to DM 60,000
(in words: sixty thousand Deutschmarks).
1.2 The shares in the Company are hereinafter collectively
referred to as the "Shares" and constitute all the shares issued
by the Company.
1.3 Seller is the sole owner of the 75 per cent of shares held
by him in the Translation GmbH. The other shareholder is Xxxx X.
Xxxxxx, who is the sole owner of the remaining 25 per cent of
shares in Translation GmbH. The stated and paid-in capital of the
Translation GmbH amounts to DM 100,000.00 (in words: one hundred
thousand Deutschmarks).
The shares owned by Seller in the Translation GmbH are
hereinafter collectively referred to as the "Translation
Shares".
2. SALE AND PURCHASE OF THE SHARES
2.1 The Seller hereby sells and with effect from Effective
Date within the meaning of Section 4 of this Agreement
assigns the Shares ("Geschaftsanteile") and the
Translation Shares ("Geschaftsanteile") as set out above
for the price described in Section 3 below ("the
Consideration"). Purchaser hereby accepts such sale and
assignment.
2.2 The sale and purchase includes any and all rights and
secondary rights attached to the Shares, including the
right to participate in all undistributed profits and
losses of the Company for whatever period. Seller shall
not be entitled to participate in any profits of the
Company for whatever period.
3. PURCHASE PRICE
The Consideration shall be satisfied by
- the allotment and issue (subject to sub-Section 3.2
below) to the Seller of 92,598 Common Stock of US$
0.01 each of the Purchaser (ranking pari passu with
the Common Stock of the Purchaser in issue at the
date hereof and credited as fully paid ("the
Consideration Shares");
- the granting of a continuing option (the "Call
Option") to demand the issue of 33,440 Common Stock
of US$ 0.01 of the Purchaser in issue at the date
hereof and credited as fully paid ("the Call Option
Shares").
4. EFFECTIVE DATE
This Agreement and all transactions contemplated and made
hereunder shall enter into force on and become effective
as per 28 February 1998, 24.00 hrs., hereinafter sometimes
referred to as the "Effective Date".
5. WARRANTIES OF SELLER
Seller hereby warrants and represents to Purchaser as per
Effective Date and again as at the date hereof, the
following:
5.1 Corporate Structure
5.1.1 The Company and the Translation GmbH have each been
properly established, is duly organised and validly
existing under the laws of its jurisdiction. All
information and data regarding ownership, corporate
rights and privileges of the Seller as referred to
in Section 1 and the Preamble above are true,
complete and correct. The articles of
association/by-laws (Satzungen/
Gesellschaftsvertrage) of the Company are current
and complete in the versions as disclosed in the
Documentary Folder.
5.1.2 No party other than Seller holds an interest in the
Company. The Company has not issued participation
rights or sub-participation rights, nor entered
into a silent partnership agreement, or any other
agreement under which the Company had to share its
current profits with a third party. The Company is
not a party to an enterprise agreement within the
meaning of sections 291, 292 German Stock
Corporation Act (Aktiengesetz) or to a joint
venture agreement.
5.1.3 Seller is the owner of the Shares and the
Translation Shares. Seller holds full and
unencumbered title to the Shares and the
Translation Shares. The Shares and the Translation
Shares are validly existing, free and clear of any
claim, lien, rights and privileges of third
parties. Seller may freely dispose of the Shares
and the Translation Shares subject only to the laws
and regulations applicable to the Company. There
are no pre-emptive rights, options, shareholders'
agreements or understandings with respect to the
Shares and the Translation Shares including,
without limitation, individual shareholder rights.
5.1.4 The execution, delivery and performance of this
Agreement including the transactions contemplated
hereunder, do not violate any other undertakings or
obligations of the Seller. Seller has full
authority to enter into this Agreement and to
perform its obligations hereunder.
5.1.5 The nominal capital of the Company and the
Translation GmbH has been fully paid up; there has
not, at any time, occured a re-payment in part or
in whole of the capital, nor has the capital of
either company been diminished by losses.
5.1.6 All assets belonging or being attributable to the
business of the Company, which are necessary for
the continuation of the Company's business as
operated at the Effective Date or are shown as the
Company's assets ("Sachanlagevermogen") in its
financial accounts as per 31 December 1997 are the
sole property of the Company or are leased by it,
and are not subject to any rights, lien and
interest or third parties, except for statutory
liens or retention of title-clauses in the ordinary
course of business. The Company does not hold any
interest in subsidiaries or any other companies.
5.1.7 Neither the Company nor the Translation GmbH is
bankrupt, overindebted, insolvent or in liquidation
as of Effective Date. To the best knowledge of
Seller, no motions for composition or bankruptcy
proceedings for the Company or the Translation GmbH
have been filed.
5.1.8 Except as disclosed in the Documentary Folder, the
Company has not incurred any contractual liability
exceeding the amount of DM50,000 or has posted any
contractual collateral for loans in the amount of
more than DM100,000 which is still effective.
5.1.9 Except as disclosed in the financial statements of
the Company as per 31 December 1997 a copy of which
is disclosed in the Documentary Folder, the Company
has not given any guarantee, letter of comfort or
similar undertaking exceeding the amount of
DM10,000 and surviving the Effective Date to secure
liabilities of third persons.
5.1.10 There exist no advisory boards nor any other boards
under the Articles of Association in the Company
and no workers' councils (Betriebsrat).
5.1.11 The Company has not made any distribution of
profits or similar payment to the Seller or any
other person on his behalf since .
5.1.12 The financial statement of the Company per 31
December 1997, has been prepared in accordance with
the statutory (German Commercial Code) provisions
in application of the German generally accepted
accounting principles including the principle of
continuity and present a true and fair view of the
economic, financial and income situation of the
company per 31 December 1997. There exist no
liabilities (liabilities incurred ("bestehende
Verbindlichkeiten"), possible liabilities
("Eventualverbindlichkeiten") or contested
liabilities ("bestrittene Verbindlichkeiten")) of
the Company per 31 December 1997 which are not
shown in the financial statement of the Company per
31 December 1997. There have not been any
significant changes as to any position in these
financial statement in the period between 31
December 1997 and the Effective Date.
5.2 Taxes and social security contribution
5.2.1 The Company has correctly, completely and timely
fulfilled all tax returns required by law to be
made and has adequately provided for and has paid
when due all taxes, duties, social security
contributions and related penalties, fines and
interests;
5.2.2 The Company is not involved in any lawsuit with
fiscal or other authorities which could affect the
tax or social security liabilities of the Company.
To the best of Sellers' knowledge, there exists no
reason to assume that any such lawsuit is
threatening.
5.2.3 The Seller has accounted for and paid in full all
taxes arising out of any relationship he has with
the Company, whether as employee, consultant or
otherwise and the Company has no liability in
respect of any tax other than tax ordinarily
payable by the Company arising in the ordinary
course of its business.
5.3 Operation of the Company
5.3.1 All public or private permits and licences required
for the conduct of the business of the Company have
been obtained and are in full force and effect
subject only to the statutory right of any
authority to revoke or restrict any such permits or
licences. The Company has always complied with all
conditions and restrictions imposed in connection
with such permits and licences. To the best
knowledge of Seller, there are no indications for
any such revocation or restrictions following
Effective Date.
5.3.2 To the best knowledge of Seller, the Company
operates its business in accordance with all
applicable statutory rules and in compliance with
governmental law.
5.3.3 To the best knowledge of Seller, the Company's
products and services conform to statutory law
applicable in the country in which they are
actively marketed. During the last three years
prior to Effective Date, there have not been any
liability claims with regard to any products and/or
services provided by the Company.
5.3.4 To the best knowledge of Seller, there exist no
claims of third parties and/or public authorities
arising out of or in connection with any
contamination of soil, water and/or air on the
business premises used by the Company; the Company
is not involved in any legal dispute or
administrative or court proceedings, nor are any
law suits of private or public parties against the
Company pending or threatening, regarding any
contamination of soil, water and/or air on the
business premises used by the Company. To the best
knowledge of Seller, neither the premises used by
the Company nor any of its assets constitutes a
health hazard to employees of the Company or third
parties.
5.4 Contracts and Commitments
5.4.1 The Company is not a party to any material contract or
commitment outside the usual and ordinary course of its
business including unusually onerous terms and conditions
or substantially impairing the earnings potential of the
Company.
5.4.2 There exist no agreements between the Company on
the one hand and the Seller or a former shareholder
of the Company or relatives of the Seller within
the meaning of 15 "Abgabenordnung" or companies
in which the Seller or his relatives hold an
interest on the other hand, except for the rental
agreement as set out in Sect. 14.2 and the
employment contract with the Seller. The parties to
this Agreement agree that all contracts between the
Company and the Seller or their relatives shall be
deemed terminated on the Effective Date at no cost
for the Company, except for the rental agreement as
set out in Section 14.2 and the employment
agreement with the Seller. Such employment contract
shall be deemed terminated upon signing of the new
employment contract between the Company and the
Seller pursuant to the draft agreement as shown in
Schedule 1. The Seller renounces all rights and
titles from such terminated contracts, including
the existing employment contract, except for such
rights and titles accounted for in the financial
statements as per 31 December 1997 and except for
such rights and titles incurred up to the Effective
Date that have been fully fulfilled by the
Effective Date. The Company has not entered into
any guarantee or security agreements of any kind in
favour of Seller, his relatives or companies in
which the Seller or his relatives hold an interest
which will survive the Effective Date.
5.4.3 The Company has not entered into any agreements
with aggregate payment obligations exceeding 5 per
cent of its respective net equity and being of
speculative nature.
5.4.4 There exist no agreements not disclosed in the
Documentary Folder that the Company depends on to
such an extent that the continuation of the
business would become impossible in case such
agreement would be terminated;
5.4.5 The Company is not subject to any agreements with
third parties restricting it in competition, in
particular agreements which exclude or restrict the
right of the Company to engage in certain branches
or fields of its business either geographically or
in a particular field of business.
5.4.6 The transfer of the Shares under this Agreement
does not lead to a right of contracting partners of
any of the Company to prematurely terminate or
modify their agreements or to impose any penalty or
additional cost on the Company.
5.5 Insurance
The Company has obtained the usual insurance coverage
adequate and sufficient to cover the Company's assets and
the liabilities that may arise from the conduct of the
Company's business to its present extent. All insurance
policies listed in the Documentary Folder hereto are fully
effective. Insurance premiums have always been paid when
due. The existence of any material and substantial
insurance agreements is not affected by virtue of the
transactions envisaged by this Agreement.
5.6 Labour Matters
5.6.1 The Documentary Folder contains a list stating
correctly and completely the name, years of
employment, and current remuneration of all of the
Company's employees. The Vendor is the only
managing director of the Company, and no
unfulfilled obligations to former managing
directors exist.
5.6.2 The Documentary Folder contains a complete list of
the shop council agreements
(Betriebsvereinbarungen) and of any regular benefit
which has become binding on the Company
(betriebliche Ubung), provided that such regular
benefit leads to an average payment obligation
exceeding DM 1,000 per employee per year. The
Company is not a member of an employers'
association and is thus not bound by any collective
pay agreement or other collective agreements.
5.6.3 The Company has regularly paid all salaries and
benefits due to employees in time.
5.6.4 To the best knowledge of Seller, there exists no other
permanent payment obligation of the Company vis a vis current or
former employees of the Company. In particular, the Company has
not granted any pension rights to current or former employees,
except where disclosed in the Documentary Folder.
5.6.5 None of the employment agreements as set out in Section
5.6.1 has been terminated by either the Company or the employee,
nor exist any facts or circumstances indicating that any of the
employees intends to leave the company; in particular, none of
the employees as set out in Section 5.6.1 have expressed their
unwillingness to continue employment after the change of
ownership in the Company or demanded amendments or supplements to
the existing terms of their employment.
5.7 Intellectual Property Rights
5.7.1 According to the best knowledge of the Seller the
patents, design patents, trademarks and other
industrial property rights registered by the
Company (if any) do not violate the rights of any
third persons.
5.7.2 To the best knowledge of Seller:
- the Company owns no registered intellectual
property rights (ie. patents, trademarks,
service marks, copyrights) except as disclosed
in the Documentary Folder;
- no right for third parties to intellectual
property rights of the Company or their use
exists;
- the Company has unrestricted ownership of all
intellectual property rights, or is a party to
a legally binding licence agreement allowing
the use of the intellectual property rights,
required to conduct their business operations
in their present form;
5.7.3 All payments of fees and other measures needed to
maintain the registered intellectual property
rights have been made and undertaken fully in a
timely fashion until Effective Date.
5.7.4 As of the date of signing of this Agreement, the
Company has not been charged or threatened to be
charged with infringement of, or been asked or has
agreed to defend or hold harmless with respect to
any infringement or charge thereof, any patent,
trademark, service xxxx, copyright or other
intellectual property rights.
5.8 Legal Disputes
The Company is not involved in any legal dispute or
administrative or court proceedings, nor are any law suits
of private or public parties against the Company pending
or threatening, involving a sum in dispute of more than
DM 10,000 in each case. The aggregate sum in dispute of
any such on-going, pending or threatening disputes or
proceedings for the Company does not exceed a total of
DM 50,000.
5.9 Conduct of Business until Effective Date
From 1 January 1997 until Effective Date:
(a) There has been no material adverse change in the
aggregate of customer and/or supplier relations of
the Company and its customers and/or suppliers as
compared with the position disclosed in the
financial accounts.
(b) The Company has not become bound or liable to be
called upon to repay prematurely any loan capital
or borrowed money.
5.10. Library
The company is the sole owner and holder of all copyrights
with regard to the Library as defined below.
The Library consists of more than 900 Expert Reports,
predominately in accordance with the current standard for
drug registration, Standardised Information, and all other
documentation created by the Company and/or its
predecessors in title. The Expert Reports, documenting
known active ingredients for pharmaceuticals, comprise
reports on at least 160 active ingredients dating from
1990 or later and at least 190 reports on active
ingredients dating from the period before 1990; all of the
Expert Reports from 1990 or later are in accordance with
the current standard for drug registration; the
Standardised Information includes package inserts, patient
information leaflets, product monographs for medical
doctors, standard information for hospital pharmacists,
summaries of product characteristics ("SPC") and annotated
SPCs; the standardised information comprises at least 45
SPCs.
All of the Library is accessible through a structured
filing system as hardcopy and as an in-house data bank of
the company according to active ingredients and other
descriptors and in proper and marketable condition.
The Library has in the past and up to the Effective Date
been protected against duplication and theft and no such
thefts and, to the best knowledge of the Seller,
duplication has occurred; the Library is unique and forms
the reliable basis for the market leadership of the
Company.
The Purchaser is aware of the fact that the Company also
is in pocession of at least 800
bioavailability/bioequivalence studies; however, these are
owned by the company's clients and do not form part of the
Library.
5.11 Disclosures and Documentary Folder
The documents and information provided by the Seller to
the Purchaser, and in particular the contents of the
Documentary Folder, are correct, complete and as per the
Effective Date current; there exist no circumstances or
aspects that were not mentioned to the Purchaser which
would be of significance in the evaluation of the Shares
and/or for the future development of the Company's
business.
6. REMEDIES FOR BREACH OF WARRANTIES AND SELLERS' LIABILITY
6.1 If any of the warranties and representations stated in
section 5 above and section 8 below should not be true and
correct, Sellers shall put Purchaser or, at Purchaser's
option, the Company in the position, Purchaser or the
Company would have been in had the warranties and
representations been true and correct.
6.2 Purchaser shall have no warranty claim under this
Agreement if the aggregate of all warranty claims arising
out of and in connection with this Agreement does not
exceed DM 10,000. In the event the aggregate of all
warranty claims is in excess of DM 10,000, Purchaser may
claim all of its actual damages pursuant the terms and
conditions of this Agreement.
6.3 No warranty claim arises in case the loss Purchaser has
suffered has already been recovered under the same or any other
provision of this Agreement, or if and to the extent that the
loss, costs or expenses suffered by Purchaser are paid under
insurance coverage.
6.4 If and in so far as warranties under Section 5.2 (Taxes
and Social Security Contribution) are incorrect, the
Seller is under an obligation to the Purchaser to re-pay
all additional business tax (in particular turnover tax,
salary tax, trade tax, trade capital tax, corporate tax,
vehicle tax, real estate transfer tax, real estate tax,
property tax as well as solidarity surcharges) and/or
social contributions. This applies, in particular, to
additional tax payments resulting from a tax audit or a
social security inspection. In the assessment of the
additional tax burden for the Company and/or the Purchaser
any direct or indirect future advantages or disadvantages
in a period of five years from the Effective Date
("Phasenverschiebung") shall be taken into account. Any
additional tax burdens that do not lead to an increase of
taxes due to a loss carried forward ("Verlustvortrag"), if
any, shall be re-paid by the Seller to the Purchaser to
the extent Purchaser has an disadvantage, i.e. a
subsequent higher tax payment than he would have had, had
the loss carried forward not been used up.
In any event, the Seller shall bear all additional tax
payments (or, in case where a loss carried forward is
diminished, the tax payment that would otherwise have been
made) for any periods up to and including the Effective
Date. This includes additional tax assessments based on
hidden profit distribution and/or any tax assessments in
connection with the capital increase entered in the
Commercial Register on 17 January 1994 with the
possibility that the transfer date (for tax purposes) may
not be more than 6 months before the transfer of the
economic ownership.
6.5 Claims for any breach of warranties under Section 5 hereof
shall become statute barred two years following Effective
Date, except with respect to warranty claims under Section
6.4, which shall become statute barred six months as from
the date upon which an additional assessment or amended
assessment by the tax or social contribution authorities
becomes res judicata, but not later than the authorities'
claims have become time barred under the applicable
statute, unless such barrment is impeded by the Purchaser.
6.6 Seller shall be given the right and opportunity to defend,
at his own risk, discretion and expense, any action
brought against the Company and/or Purchaser which might
result in any liability of Seller towards Purchaser and/or
the Company in connection with this Agreement, including
the transactions contemplated hereunder. Seller shall, at
his request, be included in the clarification of all tax
and social security questions regarding the time prior to
Effective Date, including all tax or social security
inspection. Upon request of the Seller and at his costs,
the Company will file any appeal against possible
additional tax or social security assessments that may
give raise to claims under this Agreement, unless the
Seller himself is legally entitled to file such appeal.
6.7 The Seller guarantees that the shares sold and transferred
pursuant to Section 1 do not constitute all or
substantially all of his assets ( 419 German Civil Code).
The Seller undertakes to indemnify and hold harmless the
Purchaser from any claims raised by third parties in
application of 419 German Civil Code.
7. REFERENCE TO ARBITER
The Seller and the Purchaser agree that all disputes out
of or in connection with this Agreement, including such
about its validity, will not be decided by an ordinary
court but through an arbitrational tribunal pursuant to
the separate Arbitration Agreement signed concurrently
herewith. The decision of the arbitration tribunal is
binding and final for all parties. The language of the
proceedings is English. As far as Sections 1 et seq. of
the Act on Restraints of Competition (Gesetz gegen
Wettbewerbsbechrankungen) shall apply pursuant to section
91 of the Act on Restraints of Competition to individual
provisions of this Agreement, the parties hereto are
entitled to demand decision of the ordinary courts on such
disputes instead of decision by arbitration.
8. COMPLIANCE WITH US LAW
8.1 For the purposes of this Section, the following
definitions apply:
"Accredited Investor" a bank (as defined in Section
3(a)(2) of the Securities Act of
1933, as amended (the 'Act')) or a
savings and loan association or
other institution (as defined in
Section 3(a)(5)(A) of the Act),
whether acting in regard to this
investment in its individual or a
fiduciary capacity;
a broker or dealer registered
pursuant to Section 15 of the
United States Securities Exchange
Act of 1934, as amended;
an insurance company (as defined in
Section 2(13) of the Act);
an investment company registered
under the United States Investment
Company Act of 1940, as amended;
a business development company (as
defined in Section 2(a)(48) of the
Investment Company Act of 1940, as
amended;
a Small Business Development
Company licensed by the United
States Small Business
Administration under Section
301(c) or (d) of the United States
Small Business Investment Act of
1958, as amended;
a plan established and maintained
by a United States state, its
political subdivision, or any
agency or instrumentality of a
United States state or its
political subdivisions, for the
benefit of its employees, if the
plan has total assets in excess of
$ 5,000,000;
an employee benefit plan (an "ERISA
Plan") within the meaning of Title
1 of the United States Employee
Retirement Income Security Act of
1974, as amended ("ERISA") whose
decision to purchase the interest
in the Purchaser was made by a plan
fiduciary (as defined in Section
3(21) of ERISA), which is either a
bank, savings and loan association,
insurance company or registered
investment adviser;
an ERISA Plan with total assets in
excess of $ 5,000,000 or, if a self-
directed ERISA Plan, with
investment decisions made solely by
persons that are "accredited
investors";
a private business development
company (as defined in Section
202(a)(22) of the United States
Investment Advisors Act of 1940, as
amended);
an organisation described in
Section 501(c)(3) of the United
States Internal Revenue Code of
1986, as amended, corporation,
Massachusetts or similar business
trust, or partnership, not formed
for the specific purpose of holding
the Shares of the Company or
acquiring the Consideration Shares,
with total assets in excess of
$ 5,000,000;
a natural person whose net worth
(either individually or jointly
with such person's spouse) at the
time of Completion exceeds
$1,000,000;
a natural person who had an
individual income in excess of
$200,000 or joint income with such
person's spouse in excess of
$300,000 in each of the last two
calendar years and who reasonably
expects to reach the same income
level in the current calendar year;
a trust, with total assets in
excess of $ 5,000,000, not formed
for the specific purpose of holding
the Shares of the Company or
acquiring the Consideration Shares,
whose purchase of the Consideration
Shares is directed by a
sophisticated person as described
in Rule 506(b)(2)(ii) under the
Act;
an entity in which all of the
equity owners fit into at least one
of the categories listed above;
8.2 The Seller:
warrants and represents to the Purchaser that the Seller:-
8.2.1 is acquiring the Consideration Shares for his own
account and not on behalf of any other person, and
the Seller is acquiring the Consideration Shares
for investment purposes and not with a view towards
distribution and has no present arrangement to sell
the Consideration Shares;
8.2.2 is not an officer or director of any affiliate of
the Purchaser or any of its affiliates;
8.2.3 was not organised for the specific purpose of
holding or acquiring the Consideration Shares (if
the Seller is a corporation, trust, partnership or
other organisation).
8.2.4 is an Accredited Investor or had, immediately prior
to receipt of any information regarding the
Purchaser, such knowledge and experience (alone or
with such Seller's Seller Representative, if any)
in financial and business matters as to be able to
evaluate the merits and risks of an investment in
the Purchaser.
8.2.5 is able now, and was able prior to receipt of any
information regarding the Purchaser, to bear the
economic risks of an investment in the Company and
the Purchaser.
8.3 acknowledges and agrees that the Consideration Shares have
not been registered under United States Securities Act of
1933, as amended ("the Act"), and may not be offered or
sold unless the Consideration Shares are registered under
the Act or an exemption from the registration requirements
of the Act is available;
8.4 acknowledges that the Consideration Shares are being
offered and sold to him in reliance on specific exemptions
from the registration requirements of the United States
Federal and State securities laws and that the Purchaser
is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgements
and understandings of the Seller set forth herein in order
to determine the applicability of such exemptions and the
suitability of Seller to acquire the Consideration
Shares;
8.5 acknowledges that it is his responsibility to satisfy
himself as to the full observance by this transaction and
the sale of the Consideration Shares to him of the laws of
any jurisdiction outside the United States and that he has
done so;
8.6 acknowledges that in view of the United States Securities
and Exchange Commission, the statutory basis for the
exemption claimed for the transactions would not be
present if the offer and sale of the Consideration Shares
to the Seller is part of a plan or scheme to evade the
registration provisions of the Act and the Seller confirms
that this transaction is not part of any such plan or
scheme;
8.7 has received and carefully reviewed (and the Seller's
Seller Representative, if any, as received and carefully
reviewed) the PPS Transaction Summary, Prospectus dated
27 January 1998, Annual Report on Form 10-K for the fiscal
year ended 30 June 1997, Quarterly Report on Form 10-Q
for the quarter ended 30 September 1997 and 31 December
1997, Current Reports on Form 8-K dated 23 October 1997
and 27 January 1998, 1997 Annual Report to Stockholders;
and Proxy Statement dated 8 October 1997 and the Seller
and Seller's Seller Representative, if any have had a
reasonable opportunity to ask questions of and receive
answers from the Purchaser concerning the Purchaser, and
to obtain any additional information reasonably necessary
to verify the accuracy of the information furnished to the
Seller concerning the Purchaser and all such questions, if
any, have been answered to the full satisfaction of the
Seller.
8.8 acknowledges that no representations or warranties have
been made to him by the Purchaser or any agent, employee
or affiliate of the Purchaser and in entering into this
transaction the Seller is not relying upon any
information, other than that contained in this Agreement
or specifically referred to in Clause 8.6, and the results
of independent investigations by the Seller;
8.9 has not sold, exchanged, transferred, pledged, disposed or
otherwise reduced his risk relative to the Consideration
Shares during the 30 day period preceding the date hereof;
8.10 acknowledges and agrees that this transaction is intended
to be accounted for as a pooling of interests for
financial accounting purposes, and, in that regard the
Seller hereby agrees with the Purchaser that the Seller
will not sell, exchange, transfer, pledge, dispose or
otherwise reduce his risk in relation to the Consideration
Shares during the period which begins on the date hereof
and ends at such time as the Purchaser publicly announces
financial results covering at least thirty days of post-
Completion combined operations of the Purchaser and the
Company (the "Pooling Lock-up Period") and the Purchaser
at its discretion, may cause stop transfer orders to be
placed with its transfer agent with respect to the
Consideration Shares during the Pooling Lock-up Period;
8.11 acknowledges and agrees that all offers and sales of the
Consideration Shares shall only be made in compliance with
(i) the Pooling Lock-up Period and (ii) the Purchaser's
xxxxxxx xxxxxxx and black out period policies, as from
time to time in effect and (iii) pursuant to an effective
registration statement under the Act or pursuant to an
exemption from registration under the Act.
9. NON-COMPETITION UNDERTAKING
Seller agrees that he will not, during a period of five
years as from Effective Date, engage either directly or
indirectly in the ownership, control, management or
operation of any company or business having the same or
similar business to that of the Company, or act as an
advisor or in any other function to any company or
business having the same or similar business to that of
the Company. This shall not apply for a participation in
such company or business of not more than 10% for
investment purposes only. It is known to the Purchaser
that the Seller is the head of the scientific advisory
board of ratiopharm GmbH, Ulm, and a member of the
supervisory board of Xxxxx XX, Xxxxxxx.
00. TAXES, COSTS AND EURO
10.1 Each party shall bear its costs and expenses in connection
with the preparation, execution and implementation of this
Agreement, including any and all professional fees of
their advisers. The parties need not to pay any fees to
brokers or any other intermediaries involved by the
respective other party.
10.2 Taxes on income, profits and capital gains including trade
taxes arising for and assessed against Seller out of or in
connection with this Agreement, including the transactions
contemplated under this Agreement, shall be borne by
Seller.
10.3 The notarial fees for this Agreement shall be borne in
equal shares by Seller and Purchaser.
10.4 Every liability under this contract not fulfilled at the
start day of European Monetary Union will be fulfilled in
EURO.
11. ASSIGNMENT OF RIGHTS AND UNDERTAKINGS
11.1 This agreement and any rights and obligations hereunder
may not be assigned and transferred in whole or in part
without prior written consent of the other party hereto.
11.2 Purchaser is entitled to assign and transfer all rights
and obligations under this Agreement to an affiliated
company ( 15 AktG) of the Purchaser.
12. CONFIDENTIALITY
12.1 Seller and Purchaser agree to keep confidential and secret
the contents of this Agreement from third parties, except
as they are obliged to disclose and to give notice of the
same to any court or administrative authorities or
pursuant to other mandatory notice requirements. They
will use their best efforts even in such cases to ensure
that, notwithstanding any disclosure and notice to courts
and administrative authorities, confidentiality is
maintained to the maximum possible extent.
12.2 Prior to the execution of this Agreement, Seller and
Purchaser have mutually agreed upon the language of an
official press release and additional information to be
released to the transactions contemplated by this
Agreement which is to be published after the execution of
this Agreement.
13. NOTICES
13.1 Notices in connection with this Agreement shall be
addressed to the following addresses:
If to Seller:
Herrn Xx. Xxxx Xxxxxxxx
Xxxxxxxxxxxxxx 0
00000 Xxxxxxxx
Phone: 0761/0000000
Fax : 0761/0000000
If to Purchaser:
Xxxxx X. Xxxxxxxx, Esq.
PAREXEL International Corporation
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Phone: x(000)000 0000
Fax : x(000)000 0000
13.2 The aforesaid addresses shall remain valid and in force
unless and until the other party has been notified in
writing by registered mail of any other address.
13.3 All notices in connection with this Agreement must be in
writing and shall become effective upon receipt.
14. MISCELLANEOUS
14.1 This Agreement is subject to the laws of the Federal
Republic of Germany.
14.2 The Seller undertakes to cause the present landlord of the
Company, the BHG Kartauserstrabe Xxxxx Xxxxxxxx u.a., to
amend the rental agreement of 1 April 1993 as amended on
1 December 1995, 16 August 1996, 16 September 1996 and
6 March 1997 to provide for a net rent payment of DM 23,50
per sqm per month. The Seller further undertakes to cause
the landlord to agree to any further amendments of the
rental agreement as set out above with regard to unusual,
onerous or otherwise detrimental compared to what is
adequate and consistent with the present market
conditions.
14.3 Seller shall, upon request of Purchaser, use best efforts,
as far as legally possible, to cause the auditors of the Company
to step down from their position.
14.4 Purchaser undertakes to use its best efforts to cause
Volksbank Freiburg and Dresdner Bank Freiburg to terminate all
obligations of Seller resulting from his personal bank guarantees
("Burgschaften") in connection with lines of credit to the
Company in the amounts of DM 200,000.00 and DM 300,000.00,
respectively; in any case, Purchaser agrees to put Seller as far
as possible into the same position he would be in had the bank
guarantees been terminated by the Effective Date.
14.5 The Seller represents that he is either not married or
that the consent of his spouse pursuant to 1365 German Civil
Code has been granted in writing, such documents being included
in the Documentary Folder.
14.6 The Seller explicitly consents to the conclusion of this
Agreement and its execution both in his position as shareholder
and in his position as managing director of the Company acting in
its name; the Seller undertakes to cooperate in any way as is
necessary for the execution and fulfilment of this Agreement and
to procure any other consent as required by Articles of
Association or the law of either the Company or the Translation
GmbH; the Seller explicitly consents to the conclusion of this
Agreement and its execution in his position as shareholder.
14.7 All amendments to this Agreement, including without
limitation a change of this clause itself, must be made in
writing and with the express reference to this Agreement,
unless notarisation or any other form is required.
14.8 If any of the provisions of this Agreement shall become or
be held invalid, ineffective or unenforceable, all other
provisions hereof shall remain in full force and ef-
fect. The invalid, ineffective or unenforceable provision shall
be amended and replaced by the parties hereto to such
form, substance, time, measure and jurisdiction as shall
be valid, effective and enforceable and comes as close as
possible to the purpose and intent of the invalid,
ineffective or unenforceable provision. The aforesaid
shall apply mutatis mutandis for any situation not
contemplated and covered by this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
PAREXEL International Corporation
By:/s/Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title:President
Xx. Xxxxxx Xxxxxxx
Xx. Xxxxxx Xxxxxxx
