SHARE PURCHASE AGREEMENT
(the "AGREEMENT")
between
THE SHAREHOLDERS OF COMPEX AS PER SCHEDULE 1
hereinafter the "SELLERS"
and
REHABILICARE INC.
hereinafter the "PURCHASER"
regarding
COMPEX SA
hereinafter the "COMPANY"
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TABLE OF CONTENTS
DEFINITIONS................................................................................4
ARTICLE I - PURCHASE AND SALE OF SHARES....................................................6
I.1 PURCHASE AND SALE................................................................6
I.2 PURCHASE PRICE...................................................................7
I.3 PURCHASE PRICE COMPUTATION.......................................................7
I.4 PURCHASE PRICE PAYMENT...........................................................7
I.5 DELIVERY OF AUDITORS' STATEMENT..................................................8
I.6 OBJECTION TO EARN OUT AMOUNT.....................................................8
ARTICLE II - CLOSING.......................................................................9
II.1 PLACE AND DATE...................................................................9
II.2 CLOSING DOCUMENTS................................................................9
II.2.1 At Closing, Sellers Deliver to Purchaser......................................9
II.2.2 At Closing, Purchaser Delivers to Sellers.....................................9
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF SELLERS....................................9
(a) Ownership of Shares..........................................................10
(b) Organisation of Company......................................................10
(c) Capitalisation...............................................................10
(d) Share Capital Paid up........................................................10
(e) Organisation of the Group....................................................10
(f) Ownership of Group Companies.................................................10
(g) Organisation of the Group Companies..........................................11
(h) No Contractual Rights of Third Party over Equity Interest....................11
(i) Financial Statements.........................................................11
(j) No Undisclosed Liabilities...................................................11
(k) Accounts Receivable..........................................................12
(l) Capital Improvements.........................................................12
(m) Absence of Change............................................................12
(n) Insolvency...................................................................13
(o) Taxes........................................................................14
(p) Environment..................................................................15
(q) Leases;......................................................................15
(r) Condition of Assets; Sufficiency.............................................16
(s) Intellectual Property Rights.................................................16
(t) Contracts....................................................................17
(u) Litigation...................................................................17
(v) Compliance with Laws.........................................................17
(w) Insurance....................................................................18
(x) Product Liability............................................................18
(y) Employees....................................................................18
(z) Professional and Social Welfare..............................................19
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(aa) No Collective Bargaining.....................................................19
(bb) Bank Accounts................................................................19
(cc) Millennium...................................................................19
(dd) Accuracy of Information......................................................20
(ee) Termination of Agreements between the Company and the Sellers................20
ARTICLE IV - COVENANTS....................................................................20
IV.1 AGREEMENTS......................................................................20
IV.2 COVENANT NOT TO COMPETE AND NOT TO SOLICIT......................................20
IV.3 FIDUCIARY AGREEMENT.............................................................21
ARTICLE V - INDEMNIFICATION...............................................................21
V.1 PRINCIPLE OF THE WARRANTY INDEMNIFICATION.......................................21
V.2 LIMITATION IN TIME..............................................................21
V.3 CAP; THRESHOLD..................................................................22
V.4 INDEMNIFICATION BY PURCHASER....................................................22
V.5 THIRD PARTY CLAIMS..............................................................22
V.6 ADJUSTMENT OF INDEMNITY PAYMENT.................................................23
V.7 EXCLUSIVE REMEDY................................................................23
V.8 EFFECTS OF INSURANCE ON INDEMNITY PAYMENT.......................................23
ARTICLE VI - MISCELLANEOUS................................................................24
VI.1 NOTICES.........................................................................24
VI.2 ENTIRE AGREEMENT................................................................25
VI.3 SEVERABILITY OF PROVISIONS......................................................25
VI.4 BINDING EFFECT, BENEFIT.........................................................25
VI.5 ASSIGNABILITY...................................................................25
VI.6 AMENDMENT AND MODIFICATION; WAIVER..............................................25
VI.7 ANNOUNCEMENTS...................................................................26
(a) Employees....................................................................26
(b) Press Release................................................................26
VI.8 CONFIDENTIALITY..............................................................26
VI.9 ADVISER'S FEES; EXPENSES.....................................................26
VI.10 APPLICABLE LAW...............................................................26
VI.11 ARBITRATION..................................................................26
LIST OF ANNEXES...........................................................................29
LIST OF SCHEDULES.........................................................................30
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WHEREAS the Company is a company incorporated in Switzerland, having its
registered office at Xxxx Xxxxxxxxxxxx "Xxxxxx Xxxxxx", 0000 Xxxxxxxx,
Xxxxxxxxxxx; and
WHEREAS the Company has a fully paid-up share capital of CHF 600'000.-,
divided into 600 registered shares with a par value of CHF 1'000.- each; and
WHEREAS the Sellers are currently the owners of the entire outstanding share
capital; and
WHEREAS the Company is the parent company of the Group Companies as defined
below; and
WHEREAS the Sellers desire to sell all of the outstanding shares of the
Company, and in reliance upon the representations, warranties and
undertakings set out in this Agreement, the Purchaser desires to purchase all
of the outstanding shares on the terms and conditions set out in this
Agreement;
NOW THEREFORE, the parties hereto agree as follows:
DEFINITIONS
"ACCOUNTS" shall mean the financial statements (composed of the income
statement, the balance sheet, the cash-flow statement and notes to the
financial statements) and the audited annual report if applicable of each of
the Company and the Group Companies as well as the consolidated financial
statements of the Company.
"ACCOUNTS RECEIVABLE" shall mean any and all accounts receivable, trade
receivables, notes receivable and other receivables arising out of the
Business.
"BEST KNOWLEDGE" shall mean knowledge after having made due and careful
inquiries.
"BUSINESS" shall mean the business carried on by the Company and the Group
Companies as of the date hereof, in particular the development, design, sale
and distribution of portable, low electrical consumption electrotherapy
devices to physical therapists, therapy centres, athletes, beauty parlours
and fitness centres, mainly in Europe.
"CHF" shall mean the lawful currency of Switzerland.
"CLOSING" shall have the meaning set forth in Article III.1.
"CLOSING DATE" shall have the meaning set forth in Article III.1.
"CORPORATE DOCUMENTS" shall mean the shares or share certificates
representing the Sale Shares, the share register of the Company and each
Group Company, minutes of general shareholders' meetings of the Company and
each Group Company for the last five years, minutes of the board of
directors' meetings of the Company and each Group Company for the last five
years (as far as existing), the report of the auditors to the shareholders
for the last five years and up-to-date copies of the articles of association
of the Company and each Group Company.
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"DUE DILIGENCE REPORTS" shall mean a legal due diligence report by Xxxx &
Staehelin, dated 1st July 1999, attached hereto as SCHEDULE 4, and an
accounting and tax due diligence report by PricewaterhouseCoopers, dated June
1999, attached hereto as SCHEDULE 5.
"EARN OUT AMOUNT" shall mean USD 2'000'000.- (two million United States
dollars).
"AGREEMENTS" shall mean the agreements among the Company on the one hand and
the Key Persons on the other hand, entered into immediately upon Closing on
appropriate commercial terms mutually satisfactory to both parties,
substantially in the formS set out in SCHEDULE 2.
"ENVIRONMENT LAW" shall mean any and all applicable laws or regulation
regarding the protection of the environment and of nature or human health and
safety.
"FIDUCIARY AGREEMENT" shall mean the fiduciary agreement and covenant for
indemnity among the Purchaser and Mr. Alain Nicod, substantially in the form
set out in Schedule 6.
"FINANCIAL REPORTS" shall mean the unaudited management accounts including
the income statement prepared by the management of the Company and the Group
Companies for internal purposes only.
"GROUP" means the Company and the Group Companies.
"GROUP COMPANIES" means the following companies:
- Compex France Sarl;
- Brain Box Sarl;
- Compex Medical GmbH;
- Medicompex Iberica.
"INTELLECTUAL PROPERTY RIGHTS" shall mean all trademarks and trademark
applications, all copyrights; all registrations and applications and renewals
for any of the foregoing; all trade names, trade secrets, confidential
information, ideas, formulae, compositions, know-how, technical and computer
data, documentation and software, financial, business and marketing plans,
customer and supplier lists and related information, marketing and
promotional materials and all other information and intellectual property
rights and all tangible embodiments thereof.
"KEY PERSONS" shall mean Messrs. Xxxxxxxx Xxxxx, Xxxxxx Xxxxxx and
Pierre-Xxxx Xxxxxx.
"NET REVENUES" shall mean the aggregate amount of unit sale revenues and unit
rental revenues plus after sale service revenues of the Group, minus shipping
and other logistic expenses of the type excluded from Net Revenues in the
past and minus discounts, rebates and commissions paid to third parties not
employed by the Company; it being understood (i) that the Net Revenues of the
Company and all Group Companies are included, irrespective of potential
future reorganisation and (ii) that all revenue generating transactions be
carried out in good faith in the ordinary course of business by parties with
independent interests.
"PENSION FUND CERTIFICATE" shall mean the document described in Article
IV.2.2, attached hereto as ANNEX IV.2.2(ii).
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"PROJECTED NET REVENUES 1999" shall mean the amount of CHF 20'271'086.-
(twenty million two hundred and seventy-one hundred thousand eighty-six Swiss
francs) in the calendar year 1999.
"PROJECTED NET REVENUES 2000" shall mean the amount of CHF 27'254'769.-
(twenty seven million two hundred and fifty-four thousand seven hundred and
sixty-nine Swiss francs) in the calendar year 2000.
"PURCHASE PRICE" shall have the meaning set forth in I.2.
"SALE SHARES" shall mean all issued 600 registered shares of the Company with
a par value of CHF 1'000.- (one thousand Swiss francs) each.
"SHAREHOLDERS' LOANS" shall mean loans granted by Messrs. Alain Nicod, Pascal
Nicod and Xxxx-Xxxxxxxx Nicod and Heritage Finance & Trust Co to the Company
in the aggregate amount of CHF 797'251,18 (seven hundred and ninety-seven
thousand two hundred and fifty-one hundred Swiss francs and eighteen
centimes) as of the date hereof.
"SOCIAL SECURITY CONTRIBUTIONS" shall mean the mandatory contributions to the
old-age pension insurance scheme (AVS), pension fund scheme (LPP), invalidity
insurance (AI), loss of salary insurance (Allocation pour pertes de gain) and
unemployment insurance (Assurance chomage), or any equivalent or similar
contributions and any other social security contributions (including health
insurance contributions as the case may be) applicable in the jurisdictions
in which any Group Company is situated, together with any interest or any
penalty imposed by any social security authority with respect thereto.
"TAXES" shall mean all income, profits, capital gains, capital, stamp,
anticipatory, gross receipts, sales, value added, use, real property and
other taxes (whether payable directly or by withholding), assessed by Swiss
or foreign authorities, together with any penalties, additions to tax or
additional amounts imposed by any taxing authority with respect thereto.
"USD" shall mean the lawful currency of the United States of America.
"YEAR 2000 PROBLEMS" shall mean errors or impaired operation or performance
in data processing, in the output of data or in the operation of any
machinery or process controlled by any hardware or software, in the output of
data or in the operation of any equipment or software which relate to the
failure of any computer system, software or other processing equipment used
by the Company to give due chronological recognition to calendar dates
before, on or after January 1, 2000, when processing data, or controlling or
operating any machinery or process.
ARTICLE I - PURCHASE AND SALE OF SHARES
I.1 PURCHASE AND SALE
In accordance with the terms of this Agreement, Sellers sell to Purchaser and
Purchaser purchases from Sellers the Sale Shares, all free and clear of all
liens, charges and encumbrances, with effect as of January 1, 1999.
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I.2 PURCHASE PRICE
The purchase price for the Sale Shares (hereinafter the "PURCHASE PRICE") is
composed of the following elements:
I.2.1 a cash payment of USD 10'926'275.-; such cash payment shall be applied
(i) to repay in full the Shareholders' Loan and (ii) the balance for
the Sale Shares.
I.2.2 a certain deferred portion of the Purchase Price, which should never be
an amount of more than the Earn Out Amount.
Such deferred portion of the Purchase Price shall be as follows:
(a) an amount of USD equal to the lesser of (i) the Earn Out Amount and
(ii) USD 1.00 time the result of (x) the amount of 1999 Net Revenues in
excess of 85% of Projected Net Revenues 1999, divided by (y) 2.0271086;
(b) an amount of USD equal to (a) the lesser of (i) the Earn Out Amount and
(ii) USD 1.00 time the result of (x) the amount of 2000 Net Revenues in
excess of 80% of Projected Net Revenues 2000, divided by (y) 2.7254769,
minus (b) any payment made pursuant to (a).
For purposes of calculation of the Earn Out, the Parties have agreed to refer
to SCHEDULE 1.2.
I.3 PURCHASE PRICE COMPUTATION
The Purchase Price has been determined between the Parties based on the 1998
Accounts of the Company by using the following computation methods (at an
exchange rate USD / CHF of 1,49): (i) 20,9 times the net income of an amount
of USD 622'561.-, (ii) 1,6 times the revenues of an amount of USD 8'168'925.-
and (iii) 13,3 times the EBITDA of an amount of USD 977'985.-.
I.4 PURCHASE PRICE PAYMENT
At Closing, Purchaser shall pay by wire transfer of immediately available
funds to the account No 215461-81 of Bourgeois, Muller, Pidoux et Associes,
Lausanne with Credit Suisse Private Banking, Lausanne on behalf of each of
the Sellers, an amount equal to the Purchase Price, less (i) the amount of
the Shareholders' Loan and (ii) the Earn Out Amount.
The amount equal to the Shareholders' Loan shall be paid on behalf of the
Company and in full settlement of the Shareholders' Loan at Closing to the
account mentioned in the preceding paragraph.
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The Sellers and the creditors to the Shareholders' Loan confirm herewith that
payment of USD 10'926'275.- by the Purchaser to the account mentioned in the
first paragraph of this section I.4 will fully discharge (i) the Purchaser of
the obligation to pay the Purchase Price as per I.2.1 and (ii) the Company
from its obligation to repay the Shareholders' Loan.
The division of the amount paid will be made by the Sellers and the creditors
to the Shareholders' Loan among themselves and will not have any effect on
the final discharge given hereby to the Purchaser.
Prior to February 28, 2000 and 2001, respectively, the Purchaser shall pay to
the Sellers an amount estimated to be the Earn Out Amount, on the basis of
the Net Revenue of the respective calendar year, as certified by the chief
financial officer of the Purchaser.
I.5 DELIVERY OF AUDITORS' STATEMENT
As soon as reasonably practicable after the end of the 1999 and 2000 business
years ending June 30, 2000 and 2001, respectively, of the Company, but not
later than three months after such business year end, the Purchaser shall
cause to be prepared and delivered to the Sellers a certificate from the
Company's auditors setting forth the amount of the Earn Out as derived by the
Company's auditors from the Company's Accounts (such certificate being
hereinafter referred to as the "AUDITORS' STATEMENT").
I.6 OBJECTION TO EARN OUT AMOUNT
In the event that the Sellers object in good faith to the Auditors'
Statement, the Sellers shall so advise the Purchaser by delivery to the
Purchaser of a written notice (hereinafter the "OBJECTION NOTICE"). The
Objection Notice shall set out the reasons for such objections and details of
the calculation of the Earn Out Amount.
In the event that the Parties agree on a resolution of the dispute set out in
the Objection Notice, the Parties shall confirm this resolution in the
writing and shall thereafter be bound by such resolution.
In the event that the Parties are unable to settle any dispute with respect
to the relevant Earn Out Amount within 30 (thirty) days after the delivery by
the Sellers to the Purchaser of the Objection Notice, the final determination
of the dispute shall be submitted to Atag Ernst & Xxxxx XX in Lausanne
(hereinafter the "ACCOUNTING FIRM"), forthwith and in any event, not later
than 60 (sixty) business days after delivery by the Sellers to the Purchaser
of the Objection Notice.
The determination of the Earn Out Amount by the Accounting Firm shall be made
within 30 (thirty) days after the date on which the dispute was submitted to
the Accounting Firm, and the determination of the Accounting Firm shall be
final and binding on the Parties. The Accounting Firm shall act as an expert
arbitrator (EXPERT-ARBITRE) and shall decide the matter in its reasonable
discretion. The Accounting Firm shall give the Parties the right to be heard
and shall set forth the reasons for its decisions in writing. The costs and
expenses of the Accounting Firm shall be borne equally by the Sellers and the
Purchaser.
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Within 5 (five) days after resolution, by agreement of the Parties, of the
dispute which was the subject of the Objection Notice or, failing such
resolution, within 5 (five) days after the final determination of the
Accounting Firm, the Purchaser shall pay a shortfall, if any, of the
estimated Earn Out Amount, paid as per I.4, last paragraph above, and the
Earn Out Amount determined as per I.5 and, as the case may be, I.6 above. If
the estimated Earn Out Amount paid exceeds the Earn Out Amount, the Sellers
shall repay the excess within the same time period.
ARTICLE II - CLOSING
II.1 PLACE AND DATE
The closing of the transaction contemplated herein (hereinafter the
"CLOSING") shall take place contemporaneously with the signing of this
Agreement at the offices of Xxxx & Staehelin, Geneva (hereinafter the
"CLOSING DATE").
II.2 CLOSING DOCUMENTS
II.2.1 AT CLOSING, SELLERS DELIVER TO PURCHASER
(a) the certificates representing the Sale Shares duly endorsed in blank;
(b) a resolution of the Company's board of directors authorising the
Purchaser's registration in the Company's share registry;
(c) the Company's share registry, evidencing the registration of the
Purchaser;
(d) letters of resignation of all members of the board of directors of the
Company (except Mr. Alain Nicod), each containing a statement of the
resigning director that he has been fully compensated for his services
rendered to the Company and the Group Companies and that he has no
claim of whatever nature against the Company and the Group Companies;
and
(e) the Pension Fund Certificate pursuant to Article III(z).
II.2.2 AT CLOSING, PURCHASER DELIVERS TO SELLERS
(a) evidence of payment of the Purchase Price pursuant to Article I.4.
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF SELLERS
The Sellers hereby jointly and severally make the representations and
warranties contained in this Article IV to the Purchaser, each of which is
true and correct as of the date hereof.
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The Sellers do not make any representations nor give any warranties other
than the representations and warranties contained in this Article III. The
Sellers expressly exclude any and all other representations and warranties.
Furthermore, it is expressly agreed that all facts, which are set out in the
Due Diligence Reports and which amount to a breach of representations and
warranties contained in this Article III shall not give rise to
indemnification pursuant to Article V of this Agreement.
(a) OWNERSHIP OF SHARES
Sellers hold, and Purchaser receives, good and valid title to the Sale
Shares, including those shares held in a fiduciary capacity by any
director of the Company. The Sale Shares are free and clear of all
encumbrances, mortgages, charges, liens, security interests or any
other right of any third party.
The Shares listed in SCHEDULE 1 are the only shares of the Company
issued and outstanding and the Sellers are all and the only
shareholders of the Company at the date hereof.
(b) ORGANISATION OF COMPANY
The Company is duly organised and validly existing under the laws of
Switzerland, has the corporate power to own and operate its properties
and to carry on its Business as now being conducted. The articles of
association of the Company, which are attached hereto as ANNEX III(b)
are true, correct and up-to-date.
(c) CAPITALISATION
The Company's capital structure consists in a paid-up share capital of
CHF 600'000.- (six hundred thousand Swiss francs), divided into 600
registered shares with a par value of CHF 1'000.- (one thousand Swiss
francs) each.
(d) SHARE CAPITAL PAID UP
All the issued and outstanding shares of the Company are duly and
validly authorised, issued and fully paid up.
(e) ORGANISATION OF THE GROUP
The Group is structured and organised as set out in ANNEX III(e).
ANNEX III(e) is a correct representation of the Group structure and
contains a complete list of all Group Companies and apart from the
Group Companies, the Group holds no other share capital in any
corporate entity.
(f) OWNERSHIP OF GROUP COMPANIES
ANNEX III(f)(I) is a correct representation of the share capital and
the outstanding shares of each of the Group Companies and the voting
rights pertaining thereto. The Company owns, directly or indirectly,
its interest in the capital in the Group
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Companies as set out in ANNEX III(f)(i) free and clear of all
encumbrances, mortgages, charges, liens, security interests, or any
other right of any third party, except as set out in ANNEX III(f)(ii).
ANNEX III(f)(iii) contains a correct and complete list of all
shareholders in the Group Companies listed on ANNEX III(f)(ii),
including the number of shares held by each respective shareholder and
the voting rights pertaining to his respective shareholding.
(g) ORGANISATION OF THE GROUP COMPANIES
The Group Companies are duly organised, validly existing and in good
standing under the laws of the jurisdiction in which they have been
incorporated.
The Corporate Documents of the Group Companies, which are attached
hereto as ANNEX III(g) are true, correct and up-to-date.
All of the issued and outstanding shares of capital stock of each Group
Company are validly issued, fully paid-up and non assessable.
(h) NO CONTRACTUAL RIGHTS OF THIRD PARTY OVER EQUITY INTEREST
There is no option, warrant, conversion privilege, right of
pre-emption, right to acquire, right of first refusal over or affecting
any of the Sale Shares or shares of the Group Companies, nor is there
any commitment to give or create any of the foregoing, and no person
has claimed to be entitled to any of the foregoing.
(i) FINANCIAL STATEMENTS
The Sellers have delivered to the Purchaser the Accounts for the last
five financial years as well as the Financial Reports for the period
from January 1, 1999, through May 31, 1999 as set forth in ANNEX
III(i).
The Accounts for the last five financial years have each been prepared
in accordance with the provisions of the laws of the relevant
jurisdictions and generally accepted accounting principles in such
jurisdiction applied on a consistent basis throughout the last five
financial years. The Accounts for the last five financial years are
each correct and complete.
The Financial Reports have been prepared in good faith for the purposes
of management support in accordance with the accounting principles of
the Company and the Group Companies consistently applied.
(j) NO UNDISCLOSED LIABILITIES
The Accounts for the last five financial years and notes thereto
contain all actual, conditional and contingent liabilities that,
according to the provisions of the laws of the relevant jurisdictions
and generally accepted accounting principles in such jurisdiction need
to be contained therein. As of the date hereof, there exist no other
liabilities, with the exception of liabilities which have been incurred
in the ordinary course of business since December 31, 1998.
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(k) ACCOUNTS RECEIVABLE
ANNEX III(k) sets forth a true, accurate and complete aging schedule of
all Accounts Receivable of the Company and the Group Companies as at
the dates specified. All Accounts Receivable of the Company and the
Group Companies are valid and not subject to any set-off or
counterclaim and are collectible net of the consolidated respective
reserves made for Accounts Receivable in the Accounts and Financial
Reports of the Company and the Group Companies. They have arisen out of
bona fide transactions in the ordinary course of business and, as of
the date hereof, the necessary provisions have been made in the
Accounts of the Company and the Group Companies in accordance with the
laws of the relevant jurisdictions and generally accepted accounting
principles in such jurisdiction or have been booked in the books of the
Company and the Group Companies up to the date hereof.
All Accounts Receivable on the basis of invoices issued by the Company
or the Group Companies on or prior to Closing, shall be collected on
the latest 240 days after due date of each Account Receivable, provided
that it cannot be covered by a provision specifically booked for the
payment of Accounts Receivable remaining unpaid at that date. Upon
payment of any amount by the Sellers for breach of this representation,
the Purchaser shall, at the request of the Sellers, cause the Company
to assign to Alain Nicod on behalf of all the Sellers, any uncollected
Account Receivable up to the amount of the payment made by the Sellers.
(l) CAPITAL IMPROVEMENTS
ANNEX III(l) completely and accurately describes all of the capital
improvements or purchases or other capital expenditures in excess of
CHF 100'000.- (one hundred thousand Swiss francs) per item (as
determined in accordance with the provisions of the laws of the
relevant jurisdictions and generally accepted accounting principles in
such jurisdiction) which the Company and the Group Companies have
committed to or contracted for and which have not been completed prior
to the date hereof and the costs and expenses reasonably estimated to
complete such work and purchases.
(m) ABSENCE OF CHANGE
Except as set forth on ANNEX III(m), since December 31, 1998, there
have not been:
(i) any material changes in the financial condition, assets,
liabilities, personnel or operations of the Company and the
Group Companies or in their relationships with suppliers,
customers, lessors or others, other than changes in the
ordinary course of business;
(ii) (a) any indebtedness for borrowed money incurred by the
Company or any of the Group Companies becoming or becoming
capable of being declared repayable earlier than the due date
for payment or (b) any forgiveness or cancellation of
indebtedness owing to the Company or any of the Group
Companies or waiver of any claims or rights by the Company or
any of the Group Companies with regard to such indebtedness;
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(iii) any increase in the compensation or benefits paid or to become
payable by the Company or any of the Group Companies to any of
its officers or employees or agreement to do the same, except
for scheduled increases in the ordinary course of business
consistent with past practice to employees who are not
officers of the Company or any of the Group Companies;
(iv) any dividends or distributions or any transfer, lease, license
or other disposition of assets of the Company or any of the
Group Companies to Sellers;
(v) any encumbrances (other than liens arising in the ordinary
course of business) placed on or created or extended over any
of the assets of the Company or any of the Group Companies;
(vi) any change in the collection, payment or credit practices of
the Company or any of the Group Companies or in the accounting
practices, procedures or methods of the Company or any of the
Group Companies;
(vii) any agreement, arrangement or transaction, other than in the
ordinary course of business consistent with past practice and
of an entirely arm's length nature, between (i) the Company or
any of the Group Companies and (ii) the Sellers or any officer
or employee of the Company or any of the Group Companies.
(n) INSOLVENCY
(i) No order has been notified and no resolution has been passed
for the winding up of the Company or any of the Group
Companies or for a provisional liquidator to be appointed in
respect of the Company or any of the Group Companies and no
petition has been presented and no meeting has been convened
for the purpose of winding up the Company or any of the Group
Companies.
(ii) No administration order has been made and no petition for such
an order has been presented in respect of the Company or any
of the Group Companies.
(iii) No receiver (which expression shall include an administrative
receiver) has been appointed in respect of the Company or any
of the Group Companies or all or any of its assets.
(iv) Neither the Company nor any of the Group Companies are
insolvent, or unable to pay their debts, or have stopped
paying their debts as they fall due.
(v) No unsatisfied judgement is outstanding against the Company or
any of the Group Companies.
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(o) TAXES
(i) Filing of Returns
The Company and each Group Company has filed correct and accurate
returns for Taxes and has otherwise complied in all respects with
requirements relating to the filing of Tax returns and the supply of
all information required to be supplied to any tax authority.
(ii) Payment of Taxes
The Company and each Group Company has complied with all and any
requirements relating to the payment of Taxes, of whatever nature,
including interest and penalties, if any.
(iii) Tax Provisions
The Company and each Group Company has paid and, if not paid,
established adequate provisions in its respective latest Accounts for
all Taxes of whatever nature taken as a whole that may be assessed or
computed on the results, operations or transactions of the Company and
any Group Company for all periods prior to December 31, 1998,
regardless of the financial period during which such Taxes may become
due and payable.
For the Company and each Group Company, the amount of the provision for
deferred Taxes in its latest Accounts was adequate and fully in
accordance with the provisions of the laws of the relevant jurisdiction
and generally accepted accounting principles in such jurisdiction.
The Company and each Group Company have duly submitted all claims and
disclaimers which have been assumed to have been made for the purposes
of its latest Accounts.
(iv) No Dispute
Neither the Company nor any of the Group Companies are subject to
formal proceedings or investigations related to Tax (except for
requests for additional information) by the respective authorities and,
to the Best Knowledge of the Shareholders, the Company and each Group
Company, no such proceedings are threatened against the Company and/or
any of the Group Companies.
(v) No Withholding Tax on Dividends
Neither the Company nor any of the Group Companies have distributed or
caused to be distributed, any hidden dividend, nor distributed or
granted any other benefit to the Sellers or any other person which
could lead to the imposition of any withholding taxes on dividends or
constructive dividends.
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(p) ENVIRONMENT
The Company and each Group Company conducts and has always conducted
its activities in conformity with Environment Law. Until and including
the date hereof, the Company and each Group Company has complied with
and not violated any Environment Law at the time when such law was
applicable. No action has been undertaken or, to the Best Knowledge of
the Shareholders, the Company and the Group Companies, threatened to be
undertaken by Swiss or foreign authorities with respect to Environment
Law which could have a material adverse effect on the Company and the
Group Companies taken as a whole. No facts, events or conditions in
existence on or prior to the date hereof and relating to the past or
present facilities, properties or operations of the Company and the
Group Companies will give rise to any material investigatory, remedial
or corrective obligations pursuant to Environment Law, or give rise to
any other liabilities for onsite or offsite releases of hazardous
materials, substances or wastes, personal injury, contamination of
soil, water, air or groundwater, property damage or damage to natural
resources, pursuant to Environment Law.
(q) LEASES;
ANNEX III(q) sets forth a complete and correct list of all premises
that are leased in whole or in part by the Company and the Group
Companies. The Company and the Group Companies do not own any real
property.
The lease contracts to which the Company and the Group Companies are a
party allow unencumbered use of the leased property in accordance with
the terms and conditions of such lease contracts.
Each lease of premises utilised by the Company and each Group Company
is legal, valid and binding, as between the Company and the Group
Companies and the other party or parties thereto, and the Company or
the Group Companies is tenant or possessor in good standing thereunder,
free of any default or breach and quietly enjoy the premises provided
for therein. Each rental and other payment due from the Company and the
Group Companies thereunder has been duly paid; each material act
required to be performed by the Company and the Group Companies which
if not performed would constitute a material breach thereof has been
duly performed; and no act forbidden to be performed by the Company and
the Group Companies has been performed thereunder.
The Company and the Group Companies own, or hold a valid leasehold
interest in such premises, free and clear (except for rights of
landlords with respect to fixtures and leasehold improvements, if any,
with respect to leased premises) of all encumbrances in respect of each
improvement, fixture or item of equipment located in or on each of the
properties and premises owned, leased or occupied by it; no
improvement, fixture, or equipment on any such premises is in violation
of any law, including without limitation any zoning, building, safety,
health, Environment Law or other law, and each of such premises and
properties is zoned for the purposes for which such premises or
properties are currently being used.
Share Purchase Agreement 16
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(r) CONDITION OF ASSETS; SUFFICIENCY
The equipment and other tangible assets (other than inventory) owned by
the Company and the Group Companies are owned, free of third party
rights (except the moulds which are owned at 50%) and are in good
repair and operating condition, normal wear and tear excepted, have
been maintained regularly in accordance with past practice of the
Company and the Group Companies and may be used for their intended
purpose in the normal course of the Business. The assets of the Company
and the Group Companies include all assets which have been used by the
Company and the Group Companies to conduct the Business or are required
for the purpose of carrying on the Business.
ANNEX III(r) sets forth a complete and correct list of all inventory.
This list contains details about the number of units hold in stock and
the location of such units. All assets used or physically held by the
Company and the Group Companies, irrespective of the value they may be
assigned in the Accounts, are owned by the Company or the respective
Group Company or are object of a valid lease agreement, if any.
In the Accounts of the last five financial years of the Company and of
each of the Group Companies, the assets and the inventory included
among the assets of the Company and the Group Companies are valued in
accordance with applicable accounting principles consistently applied,
and the assets and the inventory are not over-valued.
(s) INTELLECTUAL PROPERTY RIGHTS
ANNEX III(s) sets forth a complete and correct list and brief
description of all Intellectual Property Rights owned by the Company
and the Group Companies or used by the Company and the Group Companies
in connection with the Business, including all licenses and other
rights granted by the Company and the Group Companies to any third
party with respect to Intellectual Property Rights and all licenses and
other rights granted by any third party to the Company and the Group
Companies, in each case together with a description of the subject
matter licensed. (i) The Group owns and possesses all right, title and
interest in and to, or has a written, enforceable license to use, all
of the Intellectual Property Rights necessary for the operation of the
Business free and clear of all encumbrances; (ii) no claim by any third
party contesting the validity, enforceability, use or ownership of any
Intellectual Property Rights owned or used by the Group has been made,
is currently outstanding or, to the Best Knowledge of the Shareholders,
the Company and the Group Companies, is threatened, and there are no
grounds for such claim; (iii) the Group has not received any written
notices of, nor is it aware of any facts which indicate a likelihood
of, any infringement or misappropriation of, or other conflict with any
third party with respect to, any Intellectual Property Rights owned or
used by the Group, nor has the Group received any claims of
infringement or misappropriation of, or conflict with, any Intellectual
Property Rights of any third party; (iv) the Group has not infringed,
misappropriated or otherwise acted in conflict with any Intellectual
Property Rights of any third party, nor is the Group aware of any
infringement, misappropriation or conflict which will occur as a result
of the continued operation of the Business as conducted; (v) all
Intellectual Property Rights owned or used in connection with the
Business will be owned by or available for use by the Group on
identical terms and conditions
Share Purchase Agreement 17
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immediately subsequent to Closing. The Group has taken all actions
necessary to preserve the value of and to ensure the continuous
protection of the Intellectual Property Rights and its rights therein.
(t) CONTRACTS
ANNEX III(t) hereto sets forth a complete and correct list, of all
(written or oral) contracts (except employment contracts), agreements,
commitments, instruments or other consensual obligations to which the
Company or the Group Companies are a party or by which the Company or
the Group Companies, or any of the assets of the Company or the Group
Companies are bound (excluding customary inventory purchase orders in
the ordinary course of business) (i) which each involve a yearly
aggregate consideration of CHF 200'000.- (two hundred thousand Swiss
francs) or more, (ii) which evidence or provide for any borrowing
indebtedness of the Company or the Group Companies or any encumbrance
on any of the assets of the Group, excluding lease agreements, (iii)
which guarantee the performance, liabilities or obligations of any
other person (whether legal or natural), (iv) which restrict the
ability of the Company or the Group Companies to conduct any business
activities, (v) which involve any governmental entity, (vi) which are
not in the ordinary course of the business, (vii) which are not
concluded at arm's length terms, (viii) which are terminable by any
third party, or which would be breached, in both cases, as a result of
the transactions contemplated by this Agreement, (ix) which relate to
Intellectual Property Rights used in connection with the Business, (x)
which are concluded for a period of more than 6 months or cannot be
terminated on a six-month notice or (xi) which are otherwise material
to the Business (these agreements collectively referred to as the
"AGREEMENTS"). None of the Company or any Group Company is in default
or otherwise in breach of any of the Agreements, nor is any third party
in material default or otherwise in breach of the Agreements or has
repudiated any provision of the Agreements and no event has occurred
which with notice, lapse of time or both would constitute a breach or
default or permit termination, modification or acceleration of any such
Agreement.
(u) LITIGATION
There is no claim, action, suit, arbitration, inquiry, proceeding or
investigation by or before any Swiss or foreign governmental
commission, court, tribunal or arbitral body by or against any member
of the Group or any of its assets or properties pending, or, to the
Best Knowledge of the Shareholders, the Company and the Group
Companies, threatened to be brought against the Sellers, any member of
the Group or any of their officers or staff relating to the Business,
by or before any Swiss or foreign governmental commission, court,
tribunal or arbitral body nor do any circumstances exist likely to give
rise to any such claim, action suit, arbitration, inquiry, proceedings
or investigation.
(v) COMPLIANCE WITH LAWS
The Business has been conducted in compliance with all laws and
regulations of local, federal and foreign governmental authorities
applicable to the Company and the Group Companies. The Group possesses,
and is in compliance with, all licenses, permits, approvals and other
governmental authorisations required to the conduct of the
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Business, which licenses, permits and approvals are set forth on
ANNEX III(v), and there is no reason or circumstance which indicates
that such licenses, permits, approvals and authorisations are likely
to be revoked or confer a right of revocation.
(w) INSURANCE
ANNEX III(w) hereto sets forth a true and correct list of all insurance
policies maintained by the Company and the Group Companies relating to
the Business and sets forth the annual or other premiums payable
thereunder with respect to the Business and the type and extent of
coverage afforded by each such policy. Neither the Company nor any
Group Company have received any notice or other communication from any
insurance company within the three years prior to the date hereof
cancelling or amending such policies or substantially increasing the
annual or other premiums payable under any of said insurance policies
and to the Best Knowledge of the Shareholders, the Company and the
Group Companies no such cancellation or amendment is threatened.
The Company and the Group Companies maintain insurance coverage of a
kind and to an extent as it is required for the prudent conduct of the
Business and as companies of similar activity and size regularly
maintain.
All premiums pertaining to the insurance policies are paid up and have
been paid as they fell due.
(x) PRODUCT LIABILITY
The Company and the Group Companies have not manufactured, sold or
provided any product or service (i) which does not in any material
respect comply in the countries where the said products or services are
provided, with all applicable laws, regulations or standards and (ii)
which does not comply with the Company's manufacturing specification.
In particular, and without limitation to the generality of the
foregoing, the Company or the Group Companies have not incurred and to
the Best Knowledge of the Shareholders, the Company and the Group
Companies will not, in relation to products manufactured in compliance
with the aforesaid rules in the past and up to the date hereof, incur
any liability nor has any liability been alleged in connection with any
applicable laws governing product liability for personal injury or
death of any user.
(y) EMPLOYEES
ANNEX III(y) contains a list of all employees of the Company and the
Group Companies. This list contains details about salary, (including
benefits in kind), notice periods for termination, right to severance
pay and to bonus.
Except for contracts of employment listed in ANNEX III(y)(ii), each
contract of employment to which the Company or the Group Companies are
a party can be terminated by the Company or the Group Companies without
damages or compensation (other than that payable by law) by giving at
any time only the minimum period of notice applicable to that contract
under the laws of Switzerland or of any jurisdiction in which the Group
Companies are located.
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(z) PROFESSIONAL AND SOCIAL WELFARE
Any and all returns and reports related to Social Security
Contributions that are required to be filed with respect to the Company
and the Group Companies prior to the date hereof have been timely and
correctly filed. The Company and the Group Companies have paid in full
any and all Social Security Contributions as and when due. No social
security authority is now asserting any deficiency or claim for
additional Social Security Contributions (or interest thereon or
penalties in connection therewith) and any and all Social Security
Contributions which (although not due) have accrued on the basis of the
salaries to be paid until the date hereof, have been fully provided
against.
There are no facts or circumstances existing or having arisen prior to
the date hereof which have or may lead to a material re-assessment by
any social security authority of Social Security Contributions to be
made by the Company and the Group Companies relating to any period
prior to the date hereof.
The details of the employee pension fund of the Company and the Group
Companies are described in ANNEX III(z)(i) (hereinafter the "PENSION
FUND"). The Company and the Group Companies are meeting all their
obligations under the Pension Fund and specifically have paid (or
provisioned) all contributions required prior to the date hereof as
stipulated by the regulations of the Pension Fund.
Performance of these obligations is reflected in the Pension Fund
Certificate. All payments required to be made to fund the Pension Fund
have been made. The Company and the Group Companies are not required to
contribute to any pension fund other than the Pension Fund.
(aa) NO COLLECTIVE BARGAINING
Except as set forth in ANNEX III(aa), there is no collective bargaining
or other union agreement or arrangement (whether binding or not) to
which the Company and the Group Companies are a party or by which it is
bound or which is currently being negotiated and no dispute between the
Company and the Group Companies and any trade union or other
organisation formed for a similar purpose is existing, pending or
threatened.
(bb) BANK ACCOUNTS
ANNEX III(bb) contains a complete list of all bank accounts opened in
the Company's and the Group Companies' name and of the persons holding
powers to access them or withdraw from them.
(cc) MILLENNIUM
The Company and the Group Companies have exercised due diligence, with
respect to their Business, in investigation the possibility of the
occurrence of Year 2000 Problems, in a manner and to an extent that is
required for the prudent conduct of the Business and as companies of
similar activity and size have exercised.
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(dd) ACCURACY OF INFORMATION
All information required to be provided by the Sellers, the Company,
the Group Companies or their respective agents pursuant to the terms of
this Agreement is true, complete and correct.
(ee) TERMINATION OF AGREEMENTS BETWEEN THE COMPANY AND THE SELLERS
As of the date hereof, except for the agreements otherwise contemplated
by this Agreement, Sellers have terminated all agreements existing
between the Company and the Group Companies, on the one hand, and the
Sellers or any persons, companies, partnerships or other legal or
business entities with which Sellers are affiliated, on the other hand,
unless the continuation of such agreement is approved by Purchaser in
writing or contemplated by this Agreement. The termination of such
agreement does not oblige the Company and the Group Companies to make
any payments in compensation of the termination such as for example
severance payments or any payment for a notification period extending
beyond the date hereof.
ARTICLE IV - COVENANTS
IV.1 AGREEMENTS
As of the date hereof, the Purchaser and the Key Persons shall enter into the
Agreements.
IV.2 COVENANT NOT TO COMPETE AND NOT TO SOLICIT
For the purpose of assuring to the Purchaser the full benefit of the businesses
and goodwill of the Group Companies, each of the Sellers undertakes by way of
further consideration for the obligations of the Purchaser under this Agreement
as separate and independent agreements that each Seller will not:
(i) at any time after Closing disclose to any person, or himself/itself use
for any purpose, and shall use his/its best endeavours to prevent the
publication or disclosure of, any information concerning the business,
accounts or finances of the Company or any Group Company or any of its
clients' or customers' transactions or affairs of which he/it has
knowledge;
(ii) for 5 years after Closing either on his/its own account or for any other
person directly or indirectly solicit, interfere with or endeavour to
entice away from the Company or any Group Company any person who to
his/its knowledge is, or has during the past 2 years been, a client,
customer or employee of, or in the habit of dealing with, the Company or
any Group Company;
Share Purchase Agreement 21
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(iii) for 5 years after Closing, either alone or jointly with another Seller,
as a partner or a shareholder who either alone or jointly with another
Seller controls a Company, or as manager, agent for or employee of any
person, directly or indirectly carry on or be engaged, concerned or
interested in (a) the Business, or (b) any other competitive business to
the Business now carried on by the Company or any Group Company.
IV.3 FIDUCIARY AGREEMENT
As of the date hereof, the Purchaser and Mr. Alain Nicod shall enter into the
Fiduciary Agreement.
ARTICLE V - INDEMNIFICATION
V.1 PRINCIPLE OF THE WARRANTY INDEMNIFICATION
The Sellers hereby jointly and severally agree to indemnify and hold harmless
the Purchaser from and against any losses, damages, liabilities, obligations,
claims, judgements, costs and expenses including reasonable attorney's fees
incurred by the Purchaser by reason of or resulting from (i) a breach of or
inaccuracy in the representations and warranties contained in Article III or
(ii) a breach of or inaccuracy in any of the other covenants contained in
this Agreement.
The Parties mutually agree, acknowledge and expressly exclude the application
of Articles 201 and 210 SCO to any claim arising out of or in connection with
this Agreement. However, the Purchaser shall assert any claim for breach of
or inaccuracy in the representations, warranties and covenants contained in
this Agreement within six months from the discovery of such breach or
inaccuracy and the amount of the damage suffered.
V.2 LIMITATION IN TIME
The Purchaser may request indemnification as provided in Article V.1 or claim
for breach of a warranty contained in Article III: (i) during a period
starting from the date hereof until October 31, 2001 or (ii) in case of a
breach of the Sellers' representations and warranties in Articles III(o) and
III(z), the Purchaser may give notice of a claim until the expiration of the
applicable statutory limitation period in the relevant statute of limitations
(or comparable statute) in each relevant jurisdiction plus sixty days
(hereinafter in both cases of (i) and (ii) the "INDEMNIFICATION PERIOD").
Upon expiry of the Indemnification Period, the right to request
indemnification shall lapse.
Where reasonable details of any claim are given by the Purchaser to the
Sellers within this deadline, and in conformity with Article V.5 where
applicable, the giving of those details shall be considered to be a call for
indemnification, subject to the condition that such details have been sent to
the Sellers in accordance with Article V.1.
Share Purchase Agreement 22
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V.3 CAP; THRESHOLD
(i) The Parties have agreed that the Sellers' aggregate liability pursuant
to Article V.1 is limited to an aggregate amount equivalent to 30% of
the Purchase Price.
(ii) No amount shall be payable by the Sellers in respect of any claim for
damages, for breach of any of the warranties, covenants or other
undertakings under this Agreement unless and until the aggregate
cumulative liability of the Sellers in respect of all such claims,
reaches a threshold amount of CHF 200'000.- (two hundred thousand Swiss
francs). Once the threshold amount has been exceeded, the Sellers shall
be liable for the full amount of any and all claims, and not merely for
the excess, provided, however, that any single claim for an amount of
less than CHF 10'000.- (ten thousand Swiss francs) shall be disregarded
entirely.
The limitations contained in sub-clauses V.2 and V.3 shall not apply in case of
intentional misrepresentations or fraud by the Sellers which may give rise to a
claim for damages.
V.4 INDEMNIFICATION BY PURCHASER
The Purchaser hereby agrees to indemnify and hold harmless the Sellers from
and against any losses, damages, liabilities, obligations, claims,
judgements, costs and expenses including reasonable attorneys' fees incurred
by the Sellers by reason of or resulting from a breach or inaccuracy of any
of the other covenants given by the Purchaser contained in this Agreement.
V.5 THIRD PARTY CLAIMS
Promptly after a party entitled to indemnification under this Article V (an
"INDEMNIFIED PARTY") shall have received notice (an "INDEMNIFICATION NOTICE")
of the commencement of any action by a third party in respect of which the
Indemnified Party will or may seek indemnification under this Article V or
shall have discovered other facts that the Indemnified Party believes give
rise to a right to indemnity in respect of third party rights, the
Indemnified Party shall notify the party providing the indemnification
hereunder (the "INDEMNIFYING PARTY") thereof in writing but no failure to so
notify the Indemnifying Party shall relieve the Indemnifying Party from any
liability that it has to the Indemnified Party except if and to the extent
that the Indemnifying Party shall have been materially prejudiced thereby. In
making any claim under this Article V.6, the Indemnified Party will specify
with reasonable particularity the item or items giving rise to the claim and
the basis of the claim.
The Indemnified Party shall be entitled to defend such lawsuit or action
(including, without limitation, all administrative appeals, proceedings,
hearing and conferences with any tax authority and all aspects of any
litigation relating to taxes) and to employ and engage attorneys of its own
choice to adequately handle and defend the same. The reasonable fees of such
attorneys shall be borne by the Indemnifying Party.
Share Purchase Agreement 23
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The Indemnifying Party shall have the right to employ its own, separate
counsel who may give non-binding advice to the Indemnified Party and shall
have the right to be consulted by the Indemnified Party in the defence of
such lawsuit or action, but the fees and expenses of such counsel shall be at
the expense of the Indemnifying Party.
The Indemnifying Party shall co-operate in all reasonable respects with the
Indemnified Party and its attorneys in the investigation, trial and defence
of such lawsuit or action and any appeal arising therefrom.
The Indemnified Party shall, in conducting the lawsuit or action, take into
account the reasonable interests of the Indemnifying Party.
The Indemnified Party shall not make any admission of liability, agreement or
compromise with any person, body or authority in relation thereto without the
prior written consent of the Indemnifying Party which shall not be
unreasonably withheld or delayed.
V.6 ADJUSTMENT OF INDEMNITY PAYMENT
If any amount is paid by an Indemnifying Party pursuant to this Article V in
respect of any item, then to the extent that the Indemnified Party later
recovers in respect of such item an amount which, when added to the
indemnification payment previously received in respect thereof pursuant to
this Article V, exceeds the amount which the Indemnified Party was entitled
to receive in respect of such item in accordance with the terms thereof, the
Indemnified Party will pay to the Indemnifying Party promptly the amount of
such excess.
V.7 EXCLUSIVE REMEDY
The sole and exclusive remedy of any party for any misrepresentation or any
breach of a warranty or covenant set forth in or made pursuant to this
Agreement shall be a claim for indemnification under and pursuant to this
Article V, provided, however, that the Purchaser shall be entitled to
specific performance and injunctive relief where available by law.
V.8 EFFECTS OF INSURANCE ON INDEMNITY PAYMENT
It is understood by the parties hereto that any decrease of the currently
existing insurance coverage of the Company and the Group Companies, as set
forth in Art. III(v) shall be duly taken into account in determining the
indemnity payments under this Article V if such decrease would lead to an
increased indemnity payment by the Sellers.
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ARTICLE VI - MISCELLANEOUS
VI.1 NOTICES
All notices, requests, demands, waivers and other communications (together
"NOTICES"), required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if sent by registered
mail or by telefax with a confirmation by registered mail, as follows:
a. if to the Sellers, to:
Mr. Alain Nicod
Xxxxx xx Xxxxxx 00
XX -0000 Xxxxx Xxxx
Fax: 0000 00 000 00 00
with a copy to:
Xx. Xxxxxx Xxxxxxxx
Bourgeois, Muller, Pidoux & Associes
Xxxxxxxxx 0
XX-0000 Xxxxxxxx
Fax: 0000 00 000 00 00
Alain Nicod shall transmit any notices made by the Purchaser to all of the
Sellers.
b. if to the Purchaser, to:
Rehabilicare
Attn. Xx. Xxxxx X. Xxxxxx
0000 Xxx Xxxxxxx 0
Xxx Xxxxxxxx, XX 00000
Fax: 000 000 000 00 00
with a copy to:
Xxxx & Xxxxxxxxx
00 Xxxxx'Xxx
XX - 0000 Geneva
Fax: 0000 00 000 00 00
or to such other substitute person or address as any party shall from time to
time specify by notice in writing to the other parties.
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Notices and communications made by fax shall be deemed to be received on the
date of dispatch provided that an answer-back confirmation is available,
irrespective of the date of receipt of the confirmation by registered mail.
Notices given by registered mail only are deemed to be received upon delivery
to the addressee.
VI.2 ENTIRE AGREEMENT
This Agreement (including the Schedules and Annexes) constitutes the entire
agreement between the parties hereto and supersedes all prior agreements and
undertakings, oral or written, between the parties hereto with respect to the
subject matter hereof.
VI.3 SEVERABILITY OF PROVISIONS
If any term or provision of this Agreement or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement and the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Agreement shall be valid and be enforceable to the fullest extent
permitted by law.
VI.4 BINDING EFFECT, BENEFIT
This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns. Nothing in this
Agreement, express or implied, is intended to confer on any person other than
the parties hereto or their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
VI.5 ASSIGNABILITY
This Agreement shall not be assigned by any party hereto without the prior
written consent of the other parties hereto. The Purchaser may however assign
all its rights under the Agreement to any corporate entity of the group to
which it belongs.
VI.6 AMENDMENT AND MODIFICATION; WAIVER
This Agreement may be amended or modified by a written instrument duly
executed by the Purchaser and the Sellers at any time with respect to any of
the terms contained herein. No waiver by any party of any provision hereof
shall be effective unless explicitly set forth in writing and executed by the
party so waiving. Except as provided in the preceding sentence, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any
representations, warranties, covenants, or agreements contained herein, and
in any documents delivered or to be delivered pursuant to this Agreement and
in connection with the Closing hereunder. The waiver by any party hereto of a
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breach of any provision of this Agreement shall not operate or be construed
as a waiver of any other or subsequent breach or a waiver of any other
provision of this Agreement.
VI.7 ANNOUNCEMENTS
(a) EMPLOYEES
The transactions contemplated by this Agreement shall be announced to
the employees prior to or simultaneous with any press release or public
announcement in a form to be agreed upon by the parties and in
accordance with applicable laws.
(b) PRESS RELEASE
No announcement concerning this sale and purchase will be made before,
on or after Closing by any party to this Agreement except as required
by law or SEC regulations (provided that in any such case a party
required to make such an announcement has, where reasonably
practicable, first consulted the other party and taken into account the
reasonable comments, objections and requirements of the other party) or
with the written approval of the other party hereto (such approval not
to be unreasonably withheld or delayed).
VI.8 CONFIDENTIALITY
The parties agree to keep the terms of this Agreement and any information
acquired during the course of the negotiations having led to this Agreement
strictly confidential.
VI.9 ADVISER'S FEES; EXPENSES
Except as otherwise specifically provided in this Agreement, each of the parties
shall bear its own fees and costs incident to this Agreement and the
transactions contemplated hereby, including those of its financial, technical,
legal and other advisers.
VI.10 APPLICABLE LAW
This Agreement and the legal relations between the parties hereto shall be
governed by and construed in accordance with the laws of Switzerland.
VI.11 ARBITRATION
(a) All disputes arising out of or in connection with the present Agreement
that cannot be settled by mutual agreement shall be finally settled by
arbitration to the exclusion of the ordinary courts, by a three-person
arbitral tribunal (the "ARBITRAL TRIBUNAL").
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(b) In the event of such dispute, the Sellers shall jointly appoint one
arbitrator and the Purchaser shall appoint an arbitrator, and the
so-appointed arbitrators shall jointly appoint a third arbitrator who
shall act as the president of the Arbitral Tribunal (the "PRESIDENT").
Should either the Sellers or the Purchaser fail to appoint its
arbitrator within thirty days from the date of appointment of the other
party's arbitrator, or, if the two appointed arbitrators cannot agree
on the President within fifteen days from the date of appointment of
the second arbitrator, the necessary appointment shall be made by the
President of the Geneva Chamber of Commerce, at the request of one or
both parties. Such appointment shall be final and binding on the
parties hereto. The Arbitral Tribunal shall have its seat in Geneva and
the arbitration proceedings, including arguments and briefs, shall be
conducted in English. The rules of arbitration of the Geneva Chamber of
Commerce shall be applicable.
(c) The parties hereby waive the filing of the award with the competent
judicial authority. The award shall be delivered to the parties by the
Arbitral Tribunal.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date written below.
HERITAGE FINANCE AND TRUST CO. REHABILICARE INC.
------------------------------- -------------------------------
Date : Date :
Name : Name :
Title: Title:
ESPIRITO SANTO RESOURCES LTD
-------------------------------
Date :
Name :
Title:
ALAIN NICOD
-------------------------------
Date :
XXXX-XXXXXXXX NICOD
-------------------------------
Date :
PASCAL NICOD
-------------------------------
Date :
XXXXXXX XXXXXX
-------------------------------
Date :
Share Purchase Agreement 29
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LIST OF ANNEXES
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ANNEX N DEG. DESCRIPTION
III(b) Organisation of the Company
III(e) Organisation of the Group
III(f) Ownership of Group Companies
III(g) Organisation of Group Companies
III(i) Financial Statements
III(k) Accounts Receivable
III(l) Capital Improvements
III(m) Absence of Change
III(q) Lease; Real Property
III(r) Inventory
III(t) Contracts
III(v) Compliance with Laws
III(w) Insurance
III(y) Employees
III(z) Professional and Social Welfare
III(aa) No Collective Bargaining
III(bb) Bank Accounts
IV(ii) Pension Fund Certificate
Share Purchase Agreement 30
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LIST OF SCHEDULES
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SCHEDULE NUMBER DESCRIPTION
Schedule 1 Shareholders of the Company
Schedule 1.2 Earn Out Calculation
Schedule 2 Agreements (forms)
Schedule 3
Schedule 4 Due Diligence Report Xxxx & Staehelin
Schedule 5 Due Diligence Report PricewaterhouseCoopers
Schedule 6 Fiduciary Agreement
