TRANSLATION FROM FRENCH-FOR INFORMATION ONLY 1
EXHIBIT 10.2
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
OFFER OF SALE
HOTEL D'ENTREPRISES CAP GAMMA
BETWEEN
SOCIETE D'EQUIPEMENT DE LA REGION MONTPELLIERAINE, "SERM", a French public
sector "mixed economy" corporation (societe anonyme d'economie mixte), the
registered capital of which is EUR 5,894,000, the registered office of which is
located in Montpellier (34000), Hotel de Ville, identified with the SIREN under
number 462800160 and registered with the Registry of Commerce and Companies
(Registre du Commerce et des Societes) of Montpellier,
Herein represented by its General Manager (Directeur General), Xx. Xxxx XXXXXX
under authority granted to him by SERM's Board of Directors at a Meeting held on
2 October 2002,
Hereinafter called "SERM"
On the one hand,
AND
IDENIX SARL, a French limited liability company (societe a responsabilite
limitee), the registered capital of which is EUR 1,000,000, the registered
office of which is located in Xxxxxxxxxxx, 000, xxx Xxxx Xxxx, 00000, and which
is registered with the Registry of Commerce and Companies (Registre du Commerce
et des Societes) of Montpellier under number 419 909 148,
herein represented by Xx. Xxxx-Xxxx XXXXXXX, Vice President for Europe
(Vice-President, Direction Europe), under a power-of-attorney granted to him and
dated 6 November 2000 by Xx. Xxxx-Xxxxxx XXXXXXXXXX, Managing Director (Gerant)
of SARL IDENIX,
Hereinafter called "IDENIX"
On the other hand,
SERM and IDENIX are hereinafter separately called a "PARTY" and together the
"PARTIES".
INITIALS:
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RECITALS:
SERM owns a real estate complex called CAP GAMMA, intended to house companies
that specialize in biotechnology and pharmaceutical chemicals located in the
development zone called ZAC EUROMEDECINE II in the Town of Grabels, rue de la
Valsiere.
Such real estate complex was built by SERM at the request of the Metropolitan
Area (Communaute d'Agglomeration) of Montpellier, following Amendment n(degree)1
to the Public Development Agreement (Convention Publique d'Amenagement), dated
30 July 2002.
Under the Public Development Agreement, development of the zone is undertaken by
SERM under the supervision of the Metropolitan Area (Communaute d'Agglomeration)
at its financial risk.
Upon the expiration of the Pubic Development Agreement, this real estate
complex, or the portion thereof that has not been rented, will revert to the
Montpellier Metropolitan Area (Communaute d'Agglomeration de Montpellier), which
will then be required to assume future responsibility for performance of the
agreements binding it to third parties.
On 15 December 2004, the Parties entered into a Bilateral Offer to Lease
(Promesse Synallagmatique de Bail) under which SERM offered to rent to IDENIX,
for a term of twelve years as from 15 April 2005, the space that will gradually
be made available to IDENIX on basis, pursuant to a schedule agreed by the
Parties.
Thus, as from 1st April 2007, IDENIX will occupy space having total usable area,
after preparation of the private portion, of 3,271.60 m(2) and will have 56
outside parking places in the area of A Building, as well as 24 outside parking
places that will be made available to the Tenant upon completion of the 2nd
phase of the CAP GAMMA program (B Building).
Under the Offer to Lease hereinabove described, IDENIX has agreed to use the
above-described space for offices and laboratories for the purpose of engaging
in any operations and activities relating to pharmaceutical research, scientific
research, the manufacture, marketing, and sale of pharmaceutical products.
Given the investments that will be made by IDENIX in the space covered by the
Offer to Lease, IDENIX has advised SERM of its strong interest in being able to
acquire such space.
SERM has advised IDENIX that it is willing to agree to sell the space to IDENIX,
if it advises its intention to make the acquisition thereof on the terms and
conditions hereinafter set forth.
INITIALS:
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NOW, THEREFORE, THE PARTIES HERETO HEREBY AGREE AS FOLLOWS:
ARTICLE 1ER - PURPOSE
SERM hereby grants to IDENIX the right to acquire, if it so wishes, on the terms
and conditions hereinafter set forth, the real estate assets leased by IDENIX on
the terms and conditions set forth in the Lease Agreement to be made between the
Parties and the Communaute d'Agglomeration as provided in the Offer to Lease
(Promesse Synallagmatique) described in the Recitals hereto (hereinafter called
the "LEASE AGREEMENT") and more fully described in such Offer to Lease (Promesse
Synallagmatique de Bail) with which IDENIX represents and warrants that it is
quite familiar as a result of having seen and visited them for the purposes
hereof and the Bilateral Offer to Lease (Promesse Synallagmatique de Bail) (such
real estate assets being hereinafter called the "REAL ESTATE COMPLEX").
ARTICLE 2 - CONDITION PRECEDENT
This Offer of Sale is subject to the condition precedent of obtaining via a
resolution adopted by the Communaute d'Agglomeration of Montpellier, or any
other action taken by the Communaute d'Agglomeration of Montpellier authority
for SERM to sell the Real Estate Complex located in the area covered by the
Convention Publique d'Amenagement (Public Development Agreement).
If the foregoing condition precedent is not met, this Offer of Sale shall be
deemed to be null and void, and no indemnity shall be due by either party to the
other.
ARTICLE 3 - TERMS AND CONDITIONS OF THE OFFER
3.1 SERM's Covenant
SERM hereby agrees to sell the Real Estate Complex described in Article 1 above
to IDENIX on the terms and subject to the conditions hereinafter set forth.
3.2 Negative Covenants of SERM
During the term of this Offer of Sale, SERM agrees not to grant any rights or
options, real or personal, nor any charge or lien in or against the Real Estate
Complex, or to alienate or transfer such Real Estate Complex to any person other
than IDENIX or the Communaute d'Agglomeration of Montpellier.
3.3 IDENIX's Rights
IDENIX accepts this Offer of Sale as an option, but reserves the right to seek
or forego completion thereof, in its discretion.
3.4 Request to Complete
IDENIX may request completion of the sale either by service of a notice to that
effect by a court bailiff (exploit d'huissier), or by registered letter, return
receipt requested, or by a letter personally delivered, against receipt
therefor, to SERM.
INITIALS:
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Regardless of the method used, the desire to make the acquisition shall reach
SERM no later than during the day on which the periods set forth hereinafter
expire, under penalty of forfeiture:
3.4.1 Purchase Upon Expiration of the Lease Agreement:
IDENIX shall advise SERM no later than twelve (12) months prior to the
expiration date of the Lease Agreement of its decision whether or not to
acquire the Real Estate Complex.
After such deadline, and solely as a result of expiration of such term
IDENIX, as a matter of right (de plein droit) and without formal notice
(mise en demeure) shall forfeit the right to request completion of the
sale.
3.4.2 Early Purchase:
As an express exception to Article 3.4.1 hereof, IDENIX shall have the
right to acquire the Real Estate Complex earlier by giving notice to SERM
of its decision to acquire at least twelve (12) months prior to the
proposed date thereof and only as from six (6) years after the effective
date of the Lease Agreement.
3.5 Finalization by Authenticated Deed:
The sale, if it is completed, shall take place by a deed authenticated and
notarized by Maitre DOMERGUE, Notary of the ZAC EUROMEDECINE II zone, to whom
IDENIX's Notary shall lend his/her assistance.
3.6 Terms and Conditions of a Possible Sale:
The sale, if it is completed, shall occur on the basis of charges and conditions
that are ordinary and customary in such matters, including, but not limited to,
for the buyer, taking the assets sold "as is" in the state in which they exist
and of which they consist, on the date of sale.
The Sale, furthermore, shall be subject to the express condition that:
- the business conducted by IDENIX SARL be substantially the one
conducted on the date the Promesse synallagmatique de bail
(Bilateral Offer of Lease) and Administrative Lease (Bail
administrative) are made;
- IDENIX SARL have met all its obligations under the Lease Agreement,
including, but not limited to, payment of all rent and charges due
and owing under the Lease.
ARTICLE 4 - OWNERSHIP - POSSESSION
4.1 Purchase Upon Expiration of the Lease Agreement:
By express agreement of the Parties and to ensure the uninterrupted possession
of the real estate complex by IDENIX, if the sale occurs, the Parties agree to
accomplish the formalities of signing the authenticated notarized deed so that
IDENIX shall be the owner on the date the Lease Agreement terminates.
INITIALS:
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4.2 Early Purchase:
By express agreement of the Parties, if the sale is completed early, as set
forth in Article 3.4.2 hereof, IDENIX shall become the owner of the Real Estate
Complex as from signature of the authenticated notarized deed. The completion of
the sale by authenticated notarized deed shall occur no later than expiration of
the twelve (12) month period set forth in Article 3.4.2.
4.3 Failure to Complete by Deadlines:
If completion by authenticated notarized deed does not occur, a statement of
such failure shall be prepared at the request of the party acting first, which
will then have the right to seek relief in the courts to obtain completion of
such sale, or rescission of this Offer, the consequences to be borne by the
defaulting Party.
If the sale is completed as a result of a court order, entry of possession shall
occur on the date of such order.
ARTICLE 5 - PRICE
5.1 Acquisition Upon Expiration of the Lease Agreement:
The price of the sale of the Real Estate Complex that occurs upon expiration of
the Lease Agreement, as provided in Article 3.4.1 hereof, is hereby fixed at
[**] EUROS (E [**]). It shall be increased by an amount equal to any rent,
ancillary costs, and interest (interets moratoires) that may be due under the
Lease Agreement and that may not have been paid on the date on which payment is
due to be made.
It shall be increased, furthermore, by the amount of VAT that should be paid by
SERM to the Public Treasury under Article 210, Annex II of the French Tax Code.
SERM shall prepare a certificate attesting to payment of the VAT by it, so as to
enable IDENIX to recover such VAT.
All fees, taxes, and charges relating to such transfer, including under any
condominium by-laws or regulations, shall be borne exclusively by IDENIX, which
hereby agrees thereto.
5.2 Premature Purchase:
If the sale should be completed earlier, as provided in Article 3.4.2 hereof,
the sale price is hereby fixed at:
- EUR [**] for an acquisition between the ninth and twelfth years.
- EUR [**] for an acquisition in the eighth year.
- EUR [**] for an acquisition in the seventh year.
- EUR [**] for an acquisition in the sixth year
increased by the amount of VAT that should be paid by SERM to the Public
Treasury (Tresor) under Article 210, Annex II, of the French Tax Code, and the
amount of the fees and expenses of the transfer. In addition, SERM shall prepare
a certificate attesting to payment of the VAT by it, so as to enable IDENIX to
recover such VAT.
Such price shall be due and payable in full upon signature of the authenticated
notarized deed, without any option for the buyer to pay the amount due in
installments.
INITIALS:
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ARTICLE 6 - RECORDING
Recording hereof is required for a fixed fee under Article 680 of the French Tax
Code. SERM will undertake the recording formalities within 10 days, at the
Beneficiary's exclusive cost.
ARTICLE 7 - DOMICILE
For purposes hereof, the Parties elect domicile as follows: SERM at its
registered office, and IDENIX in the premises covered by the Lease Agreement.
Made in Montpellier,
On 17 December 2004
In three originals
For SERM For IDENIX
Xx. Xxxx Xxxxxx Xx. Xxxx-Xxxx XXXXXXX
/s/ Xxxx Xxxxxx /s/ Xxxx-Xxxx XXXXXXX
----------------------- ----------------------------
Director General de la SERM Xxxx-Xxxx XXXXXXX representing
Xxxx-Xxxxxx Sommadossi for Idenix
INITIALS:
