Exhibit 10.1
REORGANIZATION AGREEMENT
THIS AGREEMENT (the "Agreement"), made and entered into as of the 5th day
of September, 1996, by and among the United States residents listed in Exhibit A
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annexed hereto (each, a "U.S. Investor" and collectively, the "U.S. Investors"),
the residents of Finland listed in Exhibit B annexed hereto (each, a "Finnish
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Investor" and, collectively, the "Finnish Investors"), BIOSCIENCE, LTD.
("Bioscience"), a corporation organized under the laws of Finland, BIOCON, OY
("Biocon"), a corporation organized under the laws of Finland, ORTHOSORB, INC.
("Orthosorb"), a corporation organized under the laws of New Jersey, BIOSTENT,
INC. ("Biostent"), a corporation organized under the laws of New Jersey, and
BIONIX, INC. ("Newco"), a corporation organized under the laws of Delaware,
WITNESSETH THAT:
WHEREAS, the U.S. Investors and the Finnish Investors own all of the
capital stock of Bioscience and Biocon, the U.S. Investors and Bioscience own
all of the capital stock of Orthosorb, and the U.S. Investors own all of the
capital stock of Biostent;
WHEREAS, the U.S. Investors and the Finnish Investors desire to raise
additional capital to be utilized in connection with the businesses of
Bioscience, Biocon, Orthosorb and Biostent;
WHEREAS, the U.S. Investors and the Finnish Investors have determined
that in order to raise such capital, it is necessary to reorganize the corporate
structure of the above-mentioned businesses so that such businesses are
controlled by a single corporation, Newco, which, in turn, is owned directly and
indirectly by the U.S. Investors and the Finnish Investors;
WHEREAS, at present, the shareholdings of each U.S. Investor in
Bioscience, Biocon, Biostent and Orthosorb is accurately set forth in Exhibit A
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annexed hereto;
WHEREAS, at present, the shareholdings of each Finnish Investor in
Bioscience and Biocon is accurately set forth in Exhibit B annexed hereto;
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WHEREAS, it is the intention of the parties hereto that after all of the
transactions described herein, the U.S. Investors will own, directly and
indirectly, a 61% equity interest in Newco and the Finnish Investors will own
indirectly a 39% interest in Newco; and
WHEREAS, each of the parties intends that the restructuring of the above-
mentioned corporations required in order to effect such reorganization (the
"Reorganization") shall be effected in the manner provided for herein,
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms
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shall have the following meanings:
1.1 "Biocon Class A Shares" shall mean shares of Biocon's Class A Common
Stock.
1.2 "Biocon Class B Shares" shall mean shares of Biocon's Class B Common
Stock.
1.3 "Bioscience Shares" shall mean shares of Bioscience's common stock .
1.4 "Biostent Shares" shall mean shares of Biostent's common stock, no
par value.
1.5 "Dutch Company" shall mean Bionix B.V., a private company with
limited liability, which is in the process of being organized under
the laws of the Netherlands in accordance with Section 4 hereof.
1.6 "Finnish Representative" shall mean Xxxxxx Xxxxxxx or his designee.
1.7 "Investor" shall mean any U.S. Investor or any Finnish Investor and
"Investors" shall mean all of the U.S. Investors and all of the
Finnish Investors.
1.8 "Newco Common Shares" shall mean shares of common stock of Newco, par
value $.001 per share.
1.9 "Operating Companies" shall mean Bioscience, Biocon, Biostent and
Orthosorb.
1.10 "Orthosorb Shares" shall mean shares of Orthosorb's common
stock, no par value.
1.11 "Shareholders' Agreements" shall mean the shareholders' agreements
previously entered into by the U.S. Investors and the Finnish
Investors with respect to the capital stock of the Operating
Companies.
1.12 "U.S. Representative" shall mean Xxxxxxx X. Xxxxx or his designee.
2. REPRESENTATIONS. The parties hereto hereby represent as follows:
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2.1 Each U.S. Investor represents to each of the other Investors
that such U.S. Investor owns the number of shares of capital stock of
each of the Operating Companies set forth opposite such U.S.
Investor's name in Exhibit A annexed hereto and that such U.S.
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Investor owns such shares free and clear of any and all
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agreements, restrictions, liens and encumbrances (collectively,
"Limitations"), has the right and power to transfer such shares
hereunder free and clear of all Limitations and shall transfer such
shares hereunder free and clear of all Limitations.
2.2 Each Finnish Investor represents to each of the other Investors
that such Finnish Investor owns the number of shares of capital stock
of Bioscience and Biocon set forth opposite such Finnish Investor's
name in Exhibit B annexed hereto and that such Finnish Investor owns
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such shares free and clear of any and all Limitations, has the right
and power to transfer such shares hereunder free and clear of all
Limitations and shall transfer such shares hereunder free and clear of
all Limitations.
2.3 Each Investor represents to each of the other Investors that
such Investor is not aware of any Shareholders' Agreement applicable
to the Operating Companies other than the Shareholders' Agreements
described in Exhibit C annexed hereto.
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2.4 Simultaneous with the execution of this Agreement, each of the
Operating Companies has delivered to the U.S. Representative and the
Finnish Representative copies of all of their organizational documents
and copies of all minutes of such entities reflecting any and all
meetings of the directors and shareholders of such companies held
since their respective dates of organization.
2.5 Each of the Operating Companies represents that since December
31, 1995, it has not incurred any liabilities outside of the ordinary
course of business and none of the events described in Exhibit D
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annexed hereto has occurred.
2.6 Simultaneous with the execution of this Agreement, each of the
Operating Companies has delivered to the U.S. Representative and the
Finnish Representative copies of each material contract to which it is
subject and copies of each employee benefit plan, if any, which it has
adopted.
2.7 Each of the Operating Companies represents that Exhibit E annexed
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hereto accurately sets forth the aggregate outstanding capital stock
of such Operating Company and that Exhibits A and B annexed hereto
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accurately set forth the ownership of such Operating Company's capital
stock. Each of the Operating Companies represents that except as set
forth in such Exhibit E, there are no options, warrants or other
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rights or other securities outstanding which entitle any person or
entity to acquire any shares of capital stock of such Operating
Company.
3. REPURCHASE OF ORTHOSORB SHARES. Immediately prior to the closing
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described in Section 5 hereof ( the "First Closing"), Orthosorb shall purchase
from Bioscience, and
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Bioscience shall sell to Orthosorb, the 250 Orthosorb Shares presently owned by
Bioscience. At such time, Bioscience shall deliver to Orthosorb stock
certificates representing such Orthosorb Shares, duly endorsed for transfer, and
Orthosorb shall deliver to Bioscience a promissory note, in the principal amount
of $320,000, such note to be in the form and substance of the promissory note
annexed hereto as Exhibit F.
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4. FORMATION AND INITIAL CAPITALIZATION OF THE DUTCH COMPANY.
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4.1 FORMATION. Promptly after the execution of this Agreement, the
Investors shall cause the Dutch Company to be organized under the laws
of the Netherlands under the name Bionix, B.V. The Dutch Company
shall have articles of incorporation that shall be in the form and
substance of the articles of incorporation annexed hereto as Exhibit
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G, subject to such changes as shall be approved by the U.S.
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Representative and the Finnish Representative. The incorporators of
the Dutch Company shall be selected by mutual agreement of the U.S.
Representative and the Finnish Representative. Upon formation of the
Dutch Company, the managing directors of the Dutch Company shall be
Xxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxx, Xxxxx X. XxxXxxxxx, Xxxxx X.
Xxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxxx,
and the officers of the Dutch Company shall be as follows: President:
Xxxxx X. Xxxxxxxx; Vice President: Xxxxxx X. Xxxxxxx; Treasurer:
Xxxxxxx X. Xxxxx; and Secretary: Jukka Laitasalo.
4.2 DELIVERY BY FINNISH INVESTORS. Immediately after execution of
this Agreement, each Finnish Investor shall deliver to the Finnish
Representative all of the Biocon Class A Shares, Biocon Class B Shares
and Bioscience Shares owned by such Finnish Investor as set forth on
Exhibit B hereto, duly endorsed in blank for transfer.
4.3 DELIVERY BY U.S. INVESTORS. Immediately after execution of this
Agreement, each U.S. Investor shall deliver to the U.S.
Representative the following number of Biocon Class A Shares, Biocon
Class B Shares and Bioscience Shares owned by such U.S. Investor, duly
endorsed in blank for transfer:
U.S. INVESTOR BIOCON CLASS A SHARES BIOCON CLASS B SHARES BIOSCIENCE SHARES
------------- --------------------- --------------------- -----------------
Xxxxx X. Xxxxxxxx 62.7 21 24.0
Bershad Investment 115.0 39 44.0
Group, LP
BTAR Associates, LP 62.0 21 23.7
Xxxxx X. XxxXxxxxx 46.6 16 18.0
TDW Associates, LP 922.7 314 354.8
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5. FIRST CLOSING. The law firm of Xxxxx Dutilh shall represent the Dutch
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Company in connection with its formation. Such counsel is hereinafter referred
to as the "Dutch Counsel". A closing (the "First Closing") shall be held at the
offices of the Dutch Counsel on such date immediately after the Dutch Company
has been incorporated as shall be agreed upon by the U. S. Representative and
the Finnish Representative; provided, however, that the Dutch Company shall not
be incorporated and the First Closing shall not be held (i) in the event that,
on the date thereof, the U. S. Representative and the Finnish Representative
determine that the liabilities of Biocon exceed the basis of Biocon's assets and
(ii) in the event that either the U.S. Representative or the Finnish
Representative determine that such First Closing shall not be consummated.
Prior to the First Closing, the Finnish Representative shall deliver to the
Dutch Counsel in escrow certificates representing all of the shares of capital
stock delivered to the Finnish Representative pursuant to Section 4.2 hereof.
Prior to the First Closing, the U.S. Representative shall deliver to the Dutch
Counsel in escrow certificates representing all of the shares of capital stock
delivered to the U.S. Representative pursuant to Section 4.3 hereof. In no
event shall the Dutch Company be incorporated and in no event shall the First
Closing be held unless all of the shares required to be delivered to the Finnish
Representative and the U.S. Representative pursuant to Sections 4.2 and 4.3
hereof shall have been delivered to the Finnish Representative and the U.S.
Representative by the Investors and shall have been delivered by the Finnish
Representative and the U.S. Representative to the Dutch Counsel. Such
deliveries by the Finnish Representative and the U.S. Representative shall be
made in accordance with escrow arrangements satisfactory to the Finnish
Representative and the U.S. Representative. At the First Closing, the parties
hereto shall cause the Dutch Company to issue a total of 390,000 shares of the
Dutch Company's Class A common stock ("Dutch Company Class A Shares") to the
Finnish Investors, such shares to be allocated among the Finnish Investors in
accordance with the applicable allocation set forth in Exhibit H annexed hereto.
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At the First Closing, the parties hereto shall cause the Dutch Company to issue
a total of 120,000 shares of the Dutch Company's Class B common stock ("Dutch
Company Class B Shares") to the U.S. Investors, such shares to be allocated
among the U.S. Investors in accordance with the allocation set forth in Exhibit
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H annexed hereto.
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6. FORMATION AND CAPITALIZATION OF NEWCO.
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6.1 FORMATION. Promptly after the execution of this Agreement, the
Investors shall cause Newco to amend its certificate of incorporation
and by-laws such that its certificate of incorporation and by-laws
shall be in the form and substance of the certificate of
incorporation and by-laws annexed hereto as Exhibit J, subject to such
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changes as shall be approved by the U.S. Representative and the
Finnish Representative. The parties hereto shall cause the minutes of
Newco to reflect that the directors of Newco shall be Xxxxx X.
Xxxxxxxx, Xxxxxxx X. Xxxx, Xxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxx, Xxxxx
XxxXxxxxx, Xxxxxx Xxxxxxx and, immediately prior to the infusion of
capital by X. Xxxx Price or an entity associated with X. Xxxx Price,
Xxxxxx Xxxxxx, and the officers of Newco shall be as follows:
President: Xxxxx X. Xxxxxxxx; Vice Presidents: Xxxxxx Xxxxxxx and
Xxxxxx Xxxxxxxx; Treasurer: Xxxxxxx X. Xxxxx; and Secretary: Xxxxx X.
Xxxxxxxxx.
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Immediately after the First Closing has been completed, a
second closing (the "Second Closing") shall be held at the offices of
Xxxxxxxxxx, Sandler, Kohl, Xxxxxx & Xxxxxx, P.A. (counsel to the U. S.
Investors), 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000.
6.2 DELIVERY OF CAPITAL STOCK HELD BY THE DUTCH COMPANY. By
execution of this Agreement, the Investors hereby authorize the Dutch
Counsel and the officers of the Dutch Company to take any and all
steps necessary to contribute to Newco, at the Second Closing, all of
the Biocon Class A Shares, Biocon Class B Shares and Bioscience Shares
contributed to the Dutch Company at the First Closing, consisting of a
total of 5,709 Biocon Class A Shares, 1,911 Biocon Class B Shares and
1,962.5 Bioscience Shares. Upon receipt of such contribution, the
parties hereto shall cause Newco to issue to the Dutch Company a total
of 5,100,000 Newco Common Shares. At the Second Closing, the U.S.
Investors shall contribute to Newco the following number of Biocon
Class A Shares, Biocon Class B Shares, Bioscience Shares, Orthosorb
Shares and Biostent Shares and Newco shall issue to the U.S. Investors
a total of 4,900,000 Newco Common Shares, allocated among the U.S.
Investors in accordance with Exhibit K annexed hereto:
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U.S. INVESTOR BIOCON CLASS BIOCON CLASS BIOSCIENCE ORTHOSORB BIOSTENT
------------- A SHARES B SHARES SHARES SHARES SHARES
------------ ------------ ---------- --------- --------
Xxxxx X. Xxxxxxxx 256.3 86 98.0 31 31.00
Bershad Investment 470.0 160 180.0 75 100.00
Group, LP
BTAR Associates, LP 253.0 85 96.8 40 53.33
Xxxxx X. XxxXxxxxx 190.4 65 73.5 35 46.67
TDW Associates, LP 3,768.3 1,280 1,448.2 600 800.00
At the Second Closing, Biocon shall contribute to Newco 191 Bioscience
Shares owned by Biocon.
6.3 FINAL CAPITALIZATION. It is understood that upon completion of
the Second Closing and prior to any financing that may be consummated
by Newco, the U.S. Investors will directly own a total of 4,900,000
Newco Common Shares and the Dutch Company will directly own a total of
5,100,000 Newco Common Shares. It is further understood that at such
time the U.S. Investors will directly own a total of 120,000 Dutch
Company Class B Shares (holding 60% of the voting rights of the Dutch
Company Shares) and the Finnish Investors will own a total of 390,000
Dutch Company Class A Shares (holding 40% of the voting rights of the
Dutch Company Shares).
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7. LIQUIDATION OF ORTHOSORB AND BIOSTENT. As soon as practicable after
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the Second Closing is consummated, the parties hereto shall take all steps
necessary to cause Orthosorb (at that time, a wholly-owned subsidiary of Newco)
and Biostent (at that time, a wholly-owned subsidiary of Newco) to be merged
into Newco pursuant to the documentation annexed hereto as Exhibit L, subject to
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such changes as shall be agreed upon by the U. S. Representative and the Finnish
Representative to effect the foregoing mergers. No additional shares of capital
stock shall be issued to any party in connection with such mergers, it being
understood that the sole purpose of such mergers is to consolidate in Newco all
of the business previously performed by Orthosorb and Biostent.
8. MERGER OF BIOSCIENCE AND BIOCON. As soon as practicable after the
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mergers described in Section 7 hereof have been consummated, the parties hereto
shall cause Biocon (at that time, a wholly-owned subsidiary of Newco) to be
merged into Bioscience (then also a wholly-owned subsidiary of Newco). No
additional shares of capital stock shall be issued to any party in connection
with such merger, it being understood that the purpose of such merger is to
consolidate in one corporation all of the business previously performed by
Biocon and Bioscience.
9. TERMINATION OF SHAREHOLDERS' AGREEMENTS; NEW ARRANGEMENTS. All of the
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Shareholders' Agreements shall terminate as of the First Closing.
Notwithstanding the foregoing, each Investor consents to the transfer by each
other Investor of shares of the capital stock of the Operating Companies, the
Dutch Company or Newco to a partnership controlled by such transferring Investor
and by members of the family of such transferring Investor. At the First
Closing, each of the Investors shall enter into a shareholders' agreement in the
form of the agreement annexed hereto as Exhibit M. During the period prior to
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the time that Biostent and Orthosorb are merged into Newco, such entities shall
comply with the management guidelines annexed hereto as Exhibit N (the
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"Guidelines"). During the period prior to the time that Biocon merges into
Bioscience, Biocon shall comply with the Guidelines. Until such time as the
Board of Newco determines that it is no longer necessary, Bioscience shall
comply with the Guidelines. The Board of Newco shall have the right to revise
the Guidelines at any time.
10. FURTHER ASSURANCES. The parties hereto agree (i) to furnish upon
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request to each other such further information, (ii) to execute and deliver to
each other such other documents and (iii) to do such other acts and things, all
as the U.S. Representative and the Finnish Representative may at any time
reasonably request for the purpose of carrying out the intent of this Agreement.
11. GOVERNING LAW; JURISDICTION; SERVICE OF PROCESS. This Agreement
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shall be governed by and construed in accordance with the laws of the State of
Delaware, without application of the conflict of laws principles thereof. Any
legal action, suit or other proceeding arising out of, or in any way connected
with, the enforcement of any award described in Section 12 hereof may be brought
in the courts of the State of New Jersey, or in the United States courts for the
District of New Jersey. With respect to any such proceeding in any such court:
(a) each party hereto generally and unconditionally submits itself and its
property to the nonexclusive
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jurisdiction of such court; (b) each party hereto waives, to the fullest extent
permitted by law, any objection it has or hereafter may have to the venue of
such proceeding, as well as any claim it has or may have that such proceeding is
in an inconvenient forum; and (c) process may be served on any party hereto
anywhere in the world, by regular mail, sent to such party's address as set
forth or described in Exhibit O annexed hereto or to such other address as shall
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be provided by a party to both the U.S. Representative and the Finnish
Representative.
12. DISPUTE RESOLUTION. Any controversy or claim arising out of or
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relating to this Agreement, or the alleged breach thereof, shall be resolved by
arbitration before a panel of three arbitrators (one of whom shall be selected
by the U. S. Representative, one of whom shall be selected by the Finnish
Representative and one of whom shall be selected by the other two arbitrators)
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association. The arbitration shall take place at a mutually acceptable
location. The arbitration shall be conducted using the Expedited Procedures of
the Commercial Arbitration Rules, regardless of the amount in dispute. The
parties hereto shall bear their own attorney fees and costs in connection with
any such arbitration, and shall share equally the arbitrators' compensation
charges and the administrative fees of the American Arbitration Association. The
award rendered by the arbitrator(s) shall be final and binding upon the parties
involved in such arbitration, and judgment upon the award may be entered in any
court of competent jurisdiction.
13. SURVIVAL. All representations, warranties and agreements contained in
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this Agreement shall survive the consummation of the transactions contemplated
by this Agreement, notwithstanding any investigation conducted, or knowledge
acquired, with respect thereto.
14. HEADINGS. All headings in this Agreement are for convenience only and
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do not affect the meaning of any provision.
15. SUCCESSORS OR ASSIGNS; NO THIRD PARTY RIGHTS. This Agreement is
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binding upon and inures to the benefit of the parties hereto and their permitted
successors and assigns. This Agreement may not be assigned by any party hereto
without the prior written consent of the U.S. Representative and the Finnish
Representative. Nothing in this Agreement confers, or is intended to confer,
expressly or by implication, any rights or remedies upon any person not a party
hereto.
16. COMPLETE AGREEMENT; MODIFICATIONS. This Agreement constitutes the
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entire agreement among the parties hereto with respect to the transactions
contemplated hereby and supersedes all prior agreements and understandings with
respect to the subject matter hereof. This Agreement may not be amended or
modified in any way, nor may noncompliance with its terms be waived, except
pursuant to a written instrument signed by the party to be charged.
17. SEVERABILITY. Any provision of this Agreement that is prohibited or
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unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such
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prohibition or unenforceability without invalidating the remaining provisions
hereof; any such prohibition or unenforceability shall not invalidate or render
unenforceable such provision in any other jurisdiction.
18. COUNTERPARTS. This Agreement may be executed by the parties hereto in
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separate counterparts, each of which when so executed and delivered shall be
deemed an original. All such counterparts together constitute but one and the
same instrument.
19. CONSTRUCTION. It is understood that this Agreement is not intended to
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be construed against the party that drafted this Agreement merely by virtue of
the fact that such party was responsible for the drafting hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
BIOSCIENCE, LTD. BIOCON, OY
BY: /s/ Bioscience, Ltd. By: /s/ Biocon, OY
-------------------------- ------------------------------
ORTHOSORB, INC. BIOSTENT, INC.
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
----------------------------- ------------------------------
BIONIX, INC.
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, President
BERSHAD INVESTMENT GROUP, LP
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, General Partner
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BTAR ASSOCIATES, LP
By: STRATEGIC CONCEPTS, INC.,
general partner
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
/s/ Xxxxx X. XxxXxxxxx
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Xxxxx X. XxxXxxxxx
TDW ASSOCIATES, LP
By: TDW III, INC.,
general partner
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, President
/s/ Ole Bostman
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Ole Bostman
/s/ E. Xxxxxx Xxxxxx
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E. Xxxxxx Xxxxxx
NAJ VET LTD.
By: /s/ NAJ VET LTD.
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NOVATOR
By: /s/ Xxxxxx Xxxxxxxx
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ORTHO SCI LTD.
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By: /s/ ORTHO SCI LTD.
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/S/ Esa Partio
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Esa Partio
/s/ Timo Pohjonen
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Timo Pohjonen
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
/s/ Riita Suuronen
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Riita Suuronen
/s/ Marrku Tamminmaki
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Marrku Tamminmaki
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
/s/ Perrti Xxxxxxx
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Perrti Xxxxxxx
/s/ Seppo Vainiopaa
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Xxxxx Xxxxxxxxxx
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
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EXHIBITS
EXHIBIT DESCRIPTION
A Shareholdings of U.S. Investors
B Shareholdings of Finnish Investors
C Existing Shareholders' Agreements
D Extraordinary Events
E Outstanding Shares
F Promissory Note
G Dutch Company Organizational Documents
H Allocation of Dutch Company Shares
I Omitted
J Newco's Certificate of Incorporation and By-Laws
K Allocation of Newco Shares Among U.S. Investors
L Orthosorb/ Biostent Merger
M Shareholders' Agreement
N Guidelines
O Addresses
