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EXHIBIT 2.01
STOCK PURCHASE AGREEMENT
(English translation of execution copy executed in French)
STOCK PURCHASE AGREEMENT, dated ___________ (this "Agreement"), among
XXXXXX SCIENTIFIC INTERNATIONAL INC. ("Xxxxxx"), (i) a corporation organized and
existing under the laws of Delaware and with its principal office at Xxxxxxx
Xxxx, Xxxxxxx, Xxx Xxxxxxxxx 00000, (ii) XXXXXX SCIENTIFIC HOLDINGS FRANCE S.A.
(the "Buyer"), a societe anonyme organized and existing under the laws of France
and with its registered office at 00 xxx xx xx Xxxxx, 00000 Xxxxx, registered
with the Commercial Registry of Paris under number B 398 827 337, (iii) CAPIAC,
a societe civile organized and existing under the laws of France and with its
registered office at [Parc d'Innovation, Boulevard Xxxxxxxxx Xxxxx, 67400
Illkirch], registered with the Commercial Registry of [Strasbourg] under number
[ ] ("Capiac"), (iv) Pierre Block, a French citizen residing at 0 xxx xx xx Xxxx
x'Xxxx, 00000 Xxxxxxxxxx, (x) Xxxx-Xxxxxxxxx Block, a French citizen residing at
[ ], (vi) Pierre-Francois Block, a French citizen residing at [ ], (vii)
Xxxxxxxx Block, a French citizen residing at [ ] and (viii) Mathe Block, a
French citizen residing at [ ] (Capiac, Pierre Block, Xxxx-Xxxxxxxxx Block,
Pierre-Francois Block, Xxxxxxxx Block and Mathe Block being hereinafter
individually referred to as a "Seller" and collectively referred to as the
"Sellers").
RECITALS
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A. Bioblock Scientific (the "Company") is a societe anonyme organized
and existing under the laws of France, with its registered office at Parc
d'Innovation, Boulevard Xxxxxxxxx Xxxxx, 67400 Illkirch, and registered with the
Commercial Registry of Strasbourg under number B 778 834 051. The Company has a
registered capital of FF 20,475,000, represented by 2,047,500 shares, with a
nominal value of FF 10 per share (the "Shares"). The Company is listed on the
Second Market (Le Second Marche) and the Shares are also traded on the Frankfurt
Stock Exchange.
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B. The Sellers own, in the aggregate, [1,529,461(1)] Shares (the
"Sellers' Shares"), representing [74.7%(1)] of the Shares; and the Sellers hold,
in the aggregate, [3,058,922(1)] voting rights in the Company, representing
[85.2%(1)] of the total voting rights in the Company. The remainder of the
Shares and the voting rights in the Company are held by third parties (the
"Public Shares"). Set forth on Annex 1 is a list of the number of Shares owned,
and voting rights in the Company held, by each Seller and by the other
shareholders of the Company.
C. The Sellers also own direct interests in the Subsidiaries, as such
term is defined in Article 6. Set forth on Annex 2 is a list of the number of
shares owned by each Seller in each of the Subsidiaries (the "[SELLERS'
INTERESTS]").
D. The Sellers desire to sell all of the Sellers' Shares and all of the
[SELLERS' INTERESTS] to the Buyer, and the Buyer desires to purchase all of the
Sellers' Shares and all of the [SELLERS' INTERESTS] from the Sellers, all upon
the terms and conditions set forth in this Agreement. Xxxxxx owns substantially
all of the shares of capital stock of the Buyer, and Xxxxxx desires for the
Buyer to purchase all of the Sellers' Shares and all of the [SELLERS'
INTERESTS], all upon the terms and conditions set forth in this Agreement. (All
capitalized terms used herein without definition have the respective meanings
indicated in Article 6).
NOW, THEREFORE, in consideration of the mutual covenants,
representations and warranties contained herein, the parties hereto agree as
follows:
ARTICLE 1
SALE AND PURCHASE OF THE SELLERS' SHARES
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1.1. Sale and Purchase of the Sellers' Shares and the [SELLERS'
INTERESTS]. (a) Upon the terms and subject to the conditions set forth in this
Agreement, each Seller shall sell to the Buyer all the interest of such Seller
in the Sellers' Shares, as set forth on Annex 1, and the Buyer
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(1) These are the 1996 figures. The current figures must be confirmed with
Pierre Block's counsel.
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shall purchase from the Sellers all the interest of such Seller in the Sellers'
Shares, at the purchase price of FF [___](2) per Share, equal to an aggregate
purchase price of FF [___] (the "Share Purchase Price"). On the Closing Date,
the Buyer shall pay to each Seller the following amounts in cash, as the
payment of the Share Purchase Price for the Sellers' Shares owned by such
Seller:
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(2) FF 425 less a prorata share of the amounts to be paid for the [SELLERS'
INTERESTS].
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FF AMOUNT % OF THE SHARES
--------- PURCHASE PRICE
--------------
FOR THE [492,750] SHARES OWNED
BY CAPIAC [________] [_________]
FOR CAPIAC'S REMAINDER INTEREST
(DETENUES EN NUE-PROPRIETE) IN
THE [315,000]. SHARES, IN
WHICH SHARES THE USUFRUCT
(LIFE) INTEREST IS OWNED BY
PIERRE BLOCK. [_________]* [_________]
FOR THE [571,061] SHARES OWNED
BY PIERRE BLOCK [_________] [_________]
FOR PIERRE BLOCK'S USUFRUCT
(LIFE) INTEREST IN THE
[315,000] SHARES, IN WHICH THE
REMAINDER INTEREST (DETENUES EN
NUE-PROPRIETE) IS OWNED BY
CAPIAC [_________***] [_________]
FOR THE [49,900] SHARES OWNED
BY XXXX-XXXXXXXXX BLOCK [_________] [_________]
FOR THE [49,900] SHARES OWNED
BY PIERRE-FRANCOIS BLOCK [_________] [_________]
FOR THE [49,900] SHARES OWNED
BY XXXXXXXX BLOCK [_________] [_________]
FOR THE 950 SHARES OWNED BY
MATHE BLOCK [_________] [_________]
TOTAL FOR [1,529,461] SELLERS'
SHARES [_________] [_________]
(b) Upon the terms and subject to the conditions set forth in this
Agreement, each Seller shall sell to the Buyer all the interest of such Seller
in the [SELLERS' INTERESTS], as set forth on Annex 2, and the Buyer shall
purchase from the Sellers all the interest of the Sellers in the [SELLERS'
INTERESTS], for an aggregate purchase price of FF [ ] (the "Interests Purchase
Price"). On the Closing Date, the Buyer shall pay to each Seller the amounts set
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*** allocation to be determined by tax advisers.
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forth in Annex 2 in cash, as the payment of the Interests Purchase Price for
the [SELLERS' INTERESTS] owned by such Seller.
(c) Upon the terms and subject to the conditions set forth in this
Agreement, Xxxxxx shall cause the Buyer to purchase all of the interests of the
Sellers in the Sellers' Shares as well as all of the interests of the Sellers in
the [SELLERS' INTERESTS].
(d) Title to the Sellers' Shares and the [SELLERS' INTERESTS] purchased
by the Buyer pursuant to this Agreement shall transfer to the Buyer at the
Closing, upon payment of the Share Purchase Price and the Interests Purchase
Price and registration of the Buyer as the owner of the Sellers' Shares and the
[SELLERS' INTERESTS] in the shareholder accounts of the Company and the
Subsidiaries, all in accordance with Section 1.2.
1.2. Closing; Conditions Precedent. (a) The closing (the "Closing") of
the sale and purchase of all of the interests of the Sellers in the Sellers'
Shares and in the [SELLERS' INTERESTS] shall take place at the offices of
Debevoise & Xxxxxxxx, 21 avenue Xxxxxx V, 75008 Paris, on [____] or at such
other date or place as the parties may agree. At or immediately prior to the
Closing:
(i) The Sellers shall transfer the Sellers' Shares and the [SELLERS'
INTERESTS] to the Buyer, free and clear of all Liens, in accordance with the
applicable provisions of French law (or German or Swiss law, as the case may
be) and the articles of association (statuts) of the Company, or of the
Subsidiaries, as the case may be, and evidence shall be delivered to the
Buyer of the registration of the Buyer as the owner of all the Sellers'
Shares in the Company's shareholder accounts (certificat d'inscription en
compte) and of the registration of the Buyer as the owner of all the
[SELLERS' INTERESTS] in the Subsidiaries' shareholder accounts.
(ii) The Buyer shall pay to each Seller the amounts set forth in
Sections 1.1(a) and 1.1(b) in respect of such Seller, by wire transfer to
such bank accounts as the Sellers shall have designated for this purpose by
notice to Buyer at least five business days prior to the Closing Date.
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(b) The obligation of the Sellers to consummate the transactions
contemplated by the Closing shall be subject to the fulfillment, or waiver by
the Sellers, on or prior to the Closing Date, of each of the following
conditions:
(i) All representations and warranties of the Buyer contained in this
Agreement shall be true and correct in all material respects at the time
when made and also at and as of the Closing Date, as if made at and as of
the Closing Date; and
(ii) Xxxxxx and the Buyer shall have performed and complied in all
material respects with all agreements and covenants to be performed and
complied with by Xxxxxx and the Buyer up to and including the Closing Date
pursuant to the terms of this Agreement.
(c) The obligations of Xxxxxx and the Buyer to consummate the
transactions contemplated by the Closing shall be subject to the fulfillment, or
waiver by Xxxxxx and the Buyer, on or prior to the Closing Date, of each of the
following conditions:
(i) All representations and warranties of the Sellers contained in this
Agreement shall be true and correct in all material respects at the time
when made and also at and as of the Closing Date, as if made at and as of
the Closing Date;
(ii) The Sellers shall have performed and complied in all material
respects with all agreements and covenants to be performed and complied with
by the Sellers up to and including the Closing Date pursuant to the terms of
this Agreement;
(iii) The audited consolidated net income (resultat net consolide de
l'exercice certifie par le Commissaire aux Comptes) of the Company and its
Subsidiaries for the fiscal year ending June 30, 1998, shall be equal to or
greater than FF 43 million [AND
THE AUDITOR OF BUYER (DELOITTE & TOUCHE) SHALL HAVE BEEN GIVEN THE
OPPORTUNITY TO EXAMINE THE FINANCIAL STATEMENTS OF THE COMPANY AND ITS
SUBSIDIARIES FOR THE FISCAL YEAR ENDING JUNE 30, 1998 AND THE OPPORTUNITY TO
REVIEW THOSE FINANCIAL STATEMENTS WITH THE AUDITOR OF
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THE COMPANY AND SHALL NOT HAVE ISSUED A LETTER INDICATING THAT, IN THEIR
VIEW, THE CONSOLIDATED NET INCOME OF THE COMPANY AND ITS SUBSIDIARIES AS OF
JUNE 30, 1998 IS LESS THAN FF 43 MILLION];
(iv) The Company shall have, as of the Closing Date, Excess Cash in an
amount equal to or greater than FF 180 million, and shall have the free
unlimited right to use such amount of Excess Cash, and the Company's auditor
shall deliver to the Buyer a certificate, attesting that the amount of the
Company's Excess Cash, as of the Closing Date, is not less than FF 180
million, [and that the Company has full availability of such amount of
Excess Cash];
(v) The Sellers shall have made available to the Buyer, or Buyer's
legal, accounting and other advisors, for examination, the originals or true
and correct copies of all documents, and shall have provided the Buyer, or
Buyer's legal, accounting and other advisors, with all other information,
relating to the business and affairs of the Company and its Subsidiaries,
which the Buyer and its legal, accounting and other advisors have reasonably
requested pursuant to Section 4.4, and, in connection with the
investigations conducted by the Buyer and its legal, accounting and other
advisors, no event shall have occurred and no information shall have come to
the attention of the Buyer which could have or result in a Material Adverse
Effect, or which, by reason of its nature or its significance, would
otherwise be such as to have a negative impact on the Buyer's intent to
acquire the Seller's Shares and the Seller's Interests on the terms set
forth in this Agreement.
(vi) All directors of the Company and its Subsidiaries, other than
Pierre Block, [as well as the officers of the Company and its Subsidiaries
named in Annex 3,] shall submit or have submitted their resignations, or
shall be or have been duly removed from office, effective as of the Closing
Date;
(vii) The persons named in Annex 4 (or such other persons as the Buyer
shall have designated as replacements therefor) shall be or have been
elected or coopted as directors [and/or officers] of the Company or its
Subsidiaries, in each case as specified in Annex 4, effective as of the
Closing Date; and
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(viii) The Sellers shall have executed, or caused to be executed, the
following agreements with the Company: an employment agreement between
Pierre Block and the Buyer in the form of Annex 5A; an employment agreement
between Xxxx-Xxxxxxxxx Block and the Company in the form of Annex 5B; and an
employment agreement between Pierre-Francois Block and the Company in the
form of Annex 5C.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
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Each Seller represents and warrants to the Buyer as follows:
2.1. Corporate and Governmental Authorizations. (a) Each Seller has
full power and authority to execute this Agreement and each of the other
Transaction Documents to which it is party. The sale of all the interests of
each Seller in the Sellers' Shares and the [SELLERS' INTERESTS] and the
execution and performance of this Agreement have been duly authorized by all
requisite action of each Seller. The execution and performance of each other
Transaction Document to which any Seller is a party have been duly authorized
by all requisite action of such Seller. This Agreement constitutes the legal,
valid and binding obligation of each Seller, enforceable against such Seller in
accordance with its terms. Each other Transaction Document, when executed by
each Seller party thereto, will constitute the legal, valid and binding
obligation of such Seller, enforceable against such Seller in accordance with
its terms.
(b) No consent or other authorization of, or filing with, any Person is
required by or on behalf of any Seller, the Company or any Subsidiary in
connection with the (i) valid execution or performance of this Agreement or any
other Transaction Document by any Seller, the Company or any Subsidiary, or (ii)
the consummation by the Sellers, the Company or any Subsidiary of the
transactions contemplated by this Agreement or any other Transaction Document.
2.2. Corporate Existence and Authority; Capital Stock. (a) The Company
is a societe anonyme duly organized and validly existing under the laws of
France. The Company has full power and authority to carry on its businesses and
operations, as presently conducted. The Company has full power and authority to
execute each Transaction Document to which it is party, and the execution and
performance of each such Transaction Document have been duly authorized by all
requisite action of the Company. Each Transaction Document to which the Company
is a party, when executed by the Company, will constitute the legal, valid, and
binding obligation of the Company, enforceable against the Company in
accordance with its terms.
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(b) The capitalization of the Company consists of 2,047,500 Shares,
with a nominal value of FF 10 per Share. All of the Shares have been duly
authorized and validly issued and are fully paid. Annex 1 sets forth a complete
and correct list of the interests of each Seller in the Sellers' Shares and the
voting rights in the Company held by each Seller. The Sellers own, and on the
date of the Closing will own, all the Sellers' Shares free and clear of all
Liens. Except as set forth on Schedule 2.2(b), there are no outstanding
securities, warrants, options, agreements or other instruments or rights of any
kind that may result in the sale or issuance by the Company or any Seller of any
equity interest in the Company, and no authorization therefor has been given.
2.3. Subsidiaries. Set forth on Schedule 2.3 is a complete and correct
list of each Subsidiary, the capitalization of each Subsidiary, the stockholders
of each Subsidiary and the number of shares of capital stock (or other equity
securities) of each Subsidiary owned by such stockholders (including the
Company). Each Subsidiary is duly organized and validly existing under the laws
of the jurisdiction of its organization. Each Subsidiary has full authority to
carry on its business as presently conducted. All of the shares of capital stock
of each Subsidiary have been duly authorized and validly issued and are fully
paid. All of the shares of capital stock of each Subsidiary set forth on
Schedule 2.3 as owned by the Company or by the Sellers are so owned, free and
clear of all Liens. Except as set forth on Schedule 2.3, there are no
outstanding securities, warrants, options, agreements or other instruments or
rights of any kind that may result in the sale or issuance by any Seller, the
Company or any Subsidiary of any equity interest in any Subsidiary, and no
authorization therefor has been given.
2.4. Affiliate Companies and Transactions. (a) Set forth on Schedule
2.4(a) is a complete and correct list of each corporation, partnership or other
legal entity (i) that owns any equity security or debt instrument of the
Company or any Subsidiary, or owns, leases or has other interests in any assets
or properties of the Company or any Subsidiary, or has acquired any asset or
obtained any service from or disposed of any asset or furnished any service to,
or entered into any agreement, commitment or understanding with, the Company or
any Subsidiary since July 1, 1996, and (ii) in which any Seller, any Affiliate
of any Seller or any associate or any relative of any Seller owns, directly or
indirectly, any shares or other equity interest
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("Affiliate Company"). Also set forth on Schedule 2.4(a) is a complete and
correct description of the ownership by each Seller, each Affiliate of each
Seller and each associate or relative of each Seller in the shares or other
equity interest of each Affiliate Company.
(b) Except as set forth on Schedule 2.4(b), since June 30, 1998,
neither the Company nor any Subsidiary has, directly or indirectly, acquired any
asset or obtained any services from, or disposed of any asset or furnished any
service to any Seller or any Affiliate of any Seller.
2.5. No Conflicts. (a) The execution and performance of this Agreement
and the other Transaction Documents by the Sellers and the Company and the
Subsidiaries and the consummation of the transactions contemplated hereby and
thereby will not violate or conflict with (i) any provision of the articles of
association (statuts) or organizational documents of the Company or any
Subsidiary or the decisions of their respective shareholders or directors, (ii)
any law or regulation applicable to the Company or any Subsidiary, (iii) any
decision or order of any court, tribunal or governmental authority, or (iv) any
agreement or instrument to which the Company or any Subsidiary is a party.
(b) The execution and performance of this Agreement and the other
Transaction Documents by the Sellers and the Company and the Subsidiaries will
not result in the creation of any Lien upon any assets of the Company or any
Subsidiary.
2.6. Financial Statements. (a) The audited financial statements of the
Company and of its Subsidiaries (including the consolidated financial statements
of the Company and its Subsidiaries) for the years ended June 30, 1996, 1997 and
1998, including all annexes and notes thereto, which have been delivered to the
Buyer by the Sellers, are accurate and present fairly the financial position
and the results of operations of the Company and its Subsidiaries, at the dates
and for the periods to which they relate, have been prepared in accordance with
French GAAP (or German or Swiss GAAP, as the case may be), consistently applied
throughout the periods presented in such financial statements, and reflect all
liabilities and obligations of the Company and its Subsidiaries of any nature
whatsoever, whether accrued or not, required to be recorded thereon or in the
annexes or notes thereto at the respective dates thereof.
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(b) Since June 30, 1998, (i) there has been no material change in the
financial situation, the operating results or the business of the Company and
its Subsidiaries compared to the audited financial statements of the Company and
its Subsidiaries as of June 30, 1998, which have been delivered to the Buyer by
the Sellers (the "Financial Statements"), (ii) the Company and its Subsidiaries
have not contracted or incurred any debt, certain or foreseeable, whether
immediately due or not, for which a provision has not been recorded in the
Financial Statements, except current debts which have been incurred in the
normal course of business, in accordance with prior practice, and (iii) the
Company and its Subsidiaries have not acquired, transferred or assigned, in any
manner whatsoever, any securities or other interests, business, real estate
assets or contracts.
2.7. Absence of Undisclosed Liabilities. Neither the Company nor any
Subsidiary has any liability or obligation of any nature, whether absolute,
contingent, accrued or otherwise that could, individually or in the aggregate,
have a Material Adverse Effect, except (i) as set forth in Schedule 2.7, or (ii)
as and to the extent reflected in the Financial Statements.
2.8. Absence of Certain Events. (a) Except as set forth on Schedule
2.8(a), since June 30, 1998, (i) the Company and each Subsidiary has conducted
their businesses and operations only in the ordinary course and in a manner
consistent with past practice, (ii) to the knowledge of the Sellers, no event or
condition has occurred or existed that could, individually or in the aggregate,
have a Material Adverse Effect, and (iii) to the knowledge of the Sellers, the
Company or its Subsidiaries, no event or condition would reasonably be expected
to occur or exist that could, individually and in the aggregate, have a
Material Adverse Effect.
(b) Except as set forth on Schedule 2.8(b), since June 30, 1998, the
Company and its Subsidiaries have (i) not authorized or declared or paid any
dividend, advance on dividend, or other distribution on any capital stock of the
Company or any Subsidiary, or purchased or redeemed, directly and indirectly,
any shares of their capital stock (or other equity interest), (ii) not incurred
or committed to incur any indebtedness for borrowed money in excess of FrF
500,000, and made or committed to any material capital
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expenditures in excess of FrF 500,000, in each case either in a single
transaction or a series of related transactions, (iii) not incurred, assumed,
guaranteed or otherwise become directly or indirectly liable with respect to
any liability or obligation of any Seller or any Affiliate of any Seller, (iv)
not forgiven, cancelled, waived or released any debt, claim or right against
any Seller or any Affiliate of any Seller, (v) not modified, amended or
supplemented any agreement or understanding, or any provision or term of any
agreement or understanding, with any Seller or any Affiliate of any Seller,
(vi) not made any payment, in cash or other assets, to any Sellers or any of
their Affiliates, other than ordinary compensation in their capacity as
officers or employees of the Company and the Subsidiaries, in each case only in
accordance and consistent with past practice, and (vii) have continued to pay
their suppliers and receive payments from their clients in accordance with past
practices.
2.9. Assets. The Company and its Subsidiaries have good title to, or
in the case of leased assets a valid leasehold interest in, all the assets
(real or personal, tangible or intangible, including Intellectual Property
rights) that are material to the conduct of their businesses and operations,
as presently conducted, including all such assets reflected in the Financial
Statements (other than those disposed of since then in the ordinary course of
business), in each case free and clear of all Liens, except for Liens that
would not, individually and in the aggregate, materially detract from the value
of such assets or materially interfere with the use of such assets in the
conduct of the business and operations of the Company and its Subsidiaries. The
Company and the Subsidiaries have maintained all their tangible assets in good
and normal operating condition, and all such assets are free and clear from
defects in all material respects, ordinary wear and tear expected.
2.10. Compliance with Laws and Other Instruments. (a) Except for
violations or defaults that could not, either individually or in the aggregate,
have a Material Adverse Effect, neither the Company nor any Subsidiary is in
violation of or default under (i) any provision of its articles of association
(statuts) or organizational documents or any decision of its shareholders or
directors, or any provision of any applicable law or regulation or judicial
determination or (ii) any agreement or instrument to which it is a party.
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(b) Except as set forth on Schedule 2.10(b), the Company and its
Subsidiaries have all permits, licenses and other authorizations of governmental
and self-regulatory authorities and have made all filings and notifications that
are required in connection with the conduct of their businesses and operations,
as presently conducted, including all permits, licenses or other authorizations
relating to health and safety matters, environmental protection, pollution
control, sale and distribution of products and employee matters. Except as set
forth on Schedule 2.10(b), the Company and its Subsidiaries are, and at all
times since June 30, 1996 have been, in compliance with the provisions of all
such permits, licenses and other authorizations and all such filings and
notifications, except for such non-compliance that could not, either
individually or in the aggregate, have a Material Adverse Effect.
2.11. Litigation. Except as set forth in Schedule 2.11, there is no
claim, action, proceeding or investigation pending, or (to the knowledge of the
Sellers, the Company or any Subsidiary) threatened, against or involving the
Company or any Subsidiary before any court, arbitral or other tribunal or
governmental authority (i) which may seek to prohibit the consummation of the
transactions contemplated by this Agreement or any other Transaction Document,
or (ii) which, if adversely determined, could, individually or in the
aggregate, have a Material Adverse Effect (without regard to whether the matter
in question is covered by insurance or any other arrangement by or with any
other Person). There are no outstanding orders, judgments, decrees, awards or
injunctions issued by any court, arbitral or other tribunal or governmental
authority against the Company, any Subsidiary or any of their respective assets.
2.12. Real Property. (a) Set forth on Schedule 2.12(a) is a complete
and correct list and description of all real property (including land, buildings
and fixtures) owned by the Company or any Subsidiary. The Company and its
Subsidiaries have good, valid and marketable title to all such real property, in
each case free and clear of all Liens [, other than Liens that would not,
individually and in the aggregate, [materially] detract from the values of such
assets or [materially] interfere with the use of such real property or the
conduct of the business and operations of the Company and its Subsidiaries.]
(b) Set forth on Schedule 2.12(b) is a complete and correct list of all
real property leases, subleases and
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occupancy agreements to which the Company or any Subsidiary is a party (whether
as lessee or lessor) or pursuant to which the Company or a Subsidiary uses or
occupies any real property in connection with the business and operations of
the Company and its Subsidiaries (the "Leases"); and the Seller has delivered
to the Buyer complete and correct copies of all such Leases. Each Lease to
which the Company or a Subsidiary is party as tenant grants the Company or such
Subsidiary, as the case may be, the exclusive right to use and occupy the
premises relating thereto; and the Company and each Subsidiary enjoys peaceful
and undisturbed possession of each of such premises.
(c) There are no proceedings in eminent domain or other similar
proceedings pending or, to the knowledge of the Sellers, threatened with respect
to any real property (or any portion thereof) owned or leased by the Company or
any Subsidiary.
(d) The use and operations of any real property owned or leased by the
Company or any Subsidiary (or any portion thereof) does not violate any
agreement, commitment or understanding (whether written or oral) affecting such
real property. There is no violation of any covenant, condition, restriction or
agreement, or order, judgment or award of any court, tribunal or governmental
authority, that affects the real property owned or leased by the Company or any
Subsidiary. No current use by the Company or a Subsidiary of its owned or
leased real property (or any portion thereof) is dependent on a nonconforming
use or other similar consent or authorization of, or filing with or notice to,
a governmental authority, the absence of which would [materially] limit the use
of any property or assets of the Company or any Subsidiary. No damage or
destruction has occurred with respect to any real property owned or leased by
the Company or any Subsidiary (or any portion thereof) that, individually or in
the aggregate, could have or result in a Material Adverse Effect (without
regard to whether the property in question is covered by insurance).
2.13. Environmental Matters. Except as set forth on Schedule 2.13, no
condition or circumstance has existed or exists, and neither the Sellers, any
Affiliate of the Sellers, the Company nor any Subsidiary has caused or taken any
action, that (i) to the knowledge of the Sellers, would result in any liability
or obligation on the part of the Company or any of its Subsidiaries relating to
environmental conditions on any real property, including the air, soil and
groundwater conditions at any real property owned or used by
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the Company or any of its Subsidiaries, whether currently or in the past, or
(ii) would result in any liability or obligation on the part of the Company or
any of its Subsidiaries relating to the past or present use, handling,
transport, storage or release of pollutants, chemicals or industrial, toxic or
hazardous substances or wastes, except for such liability or obligation that
could not, individually or in the aggregate, have a Material Adverse Effect.
2.14. Employees, Labor Matters, etc. (a) Except as set forth on
Schedule 2.14(a), during the period commencing June 30, 1995, the Company and
its Subsidiaries have not experienced any collective labor dispute, strike,
slowdown, picketing, work stoppage, concerted refusal to work overtime or
collective resignation, and there is no complaint pending or threatened against
the Company or its Subsidiaries by any of their respective past or present
employees, trade unions or other representative labor bodies, which could have
or result in a Material Adverse Effect.
(b) Schedule 2.14(b) sets forth a true and complete list of all
collective bargaining agreements and other company labor agreements applicable
to the Company and each of its Subsidiaries, respectively (all of such
agreements being hereinafter collectively referred to as the "Collective Labor
Agreements"). True and complete copies of all such Collective Labor Agreements
have been delivered to the Buyer. The Company and its Subsidiaries have
complied, in all respects, with all applicable laws and regulations pertaining
to the employment or termination of employment of their respective past or
present employees, including, without limitation, all such laws and regulations
relating to labor relations, prohibition of discrimination and safety and health
of employees, as well as with the Collective Labor Agreements, except for any
failure so to comply that, both individually and in the aggregate, could not
have or result in a Material Adverse Effect. The Company and its Subsidiaries
have, pursuant to applicable laws and regulations, and the Collective Labor
Agreements, paid in full all wages, salaries, bonuses, vacation pay and other
direct and indirect compensation earned by, or otherwise due and payable to, all
current and former employees and managers of the Company and its Subsidiaries.
(c) The Company and the Subsidiaries have complied with all
requirements pursuant to applicable laws and regulations, and the Collective
Labor Agreements, with
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respect to employee representation, including those provisions relating to the
organization of elections for a workers' council (comite d'entreprise) and the
election of employee representatives (delegues du personnel). To the extent
that there is no workers' council and/or no employee representative due to the
absence of candidates, the Company and its Subsidiaries have full documentation
of such absence of candidates (constat de carence) and these have been filed in
compliance with applicable labor laws and regulations.
(d) Schedule 2.14(d) [SETS FORTH A LIST (INCLUDING FOR EACH EMPLOYEE:
THE SENIORITY, ANNUAL BASE SALARY, ANNUAL BONUS IF ANY; AND OTHER ENTITLEMENTS
BEYOND THOSE SPECIFIED IN THE COLLECTIVE LABOR AGREEMENTS, IF ANY)] [INCLUDES A
COPY] of all employment agreements[, AND ANY AMENDMENTS THERETO,] which have
been entered into as of the date hereof by the Company and its Subsidiaries.
Except as set forth on Schedule 2.14(d), no employment agreement in effect with
the Company or a Subsidiary contains provisions regarding employment
compensation, advance notice of departure or departure payments in excess of
those required by the relevant laws and regulations and the Collective Labor
Agreements. Except the plans provided for by applicable laws and regulations,
or the Collective Labor Agreements, the Company and its Subsidiaries do not
maintain any other pension schemes or profit-sharing plans, or any other
employee benefit plans, and are not required to contribute to any such plans.
Except as set forth on Schedule 2.14(d), there exists, as of the date hereof,
no obligation with respect to current and former managers (mandataires sociaux)
of the Company and its Subsidiaries.
2.15. Taxes and Social Charges. (a) Except as set forth on Schedule
2.15, the Company and its Subsidiaries have duly and timely filed all returns
relating to Taxes and Social Charges required to be filed by the Company and its
Subsidiaries and all such returns were correct and complete in all material
respects. The Company and its Subsidiaries have duly and timely paid all Taxes
and Social Charges that are due and payable by the Company and its Subsidiaries
and have duly accrued all Taxes and Social Charges which are not yet payable.
(b) The Company and its Subsidiaries have duly and timely withheld all
Taxes and Social Charges required to be withheld from employees in connection
with their businesses and operations; and such withheld Taxes and
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Social Charges have been either duly and timely paid to the proper governmental
authorities or properly set aside in their accounts for such purpose.
2.16. Intellectual Property. To the knowledge of the Sellers, the
Company or any Subsidiary, there has been no (i) notice, claim or other
indication that the rights of the Company or any Subsidiary in the trademarks,
tradenames and software (including software developed by the Company or its
Subsidiaries) used by the Company and the Subsidiaries in the conduct of their
businesses and operations are not valid or enforceable, (ii) notice, claim or
other indication that any other party would be entitled to any additional fees
or compensation in respect of such trademarks, tradenames or software as a
result of the consummation of the transactions contemplated by this Agreement
or upon the use by Affiliates of Xxxxxx of such trademarks, tradenames or
software after the consummation of the transactions contemplated by this
Agreement, or (iii) infringement upon or conflict with any intellectual or
industrial property owned or used by any Person by the Company and the
Subsidiaries. Neither the Sellers, the Company nor any Subsidiary is aware of
any infringement by any Person of any trademarks, tradenames or software
(including software developed by the Company or its Subsidiaries) used by the
Company and the Subsidiaries.
2.17. Material Contracts. (a) Set forth on Schedule 2.17 is a complete
and correct list or description of all agreements, commitments and
understandings (whether written or oral) to which the Company or any Subsidiary
is a party or to which any of their assets are bound and that (i) involve or
would involve the expenditure by any party thereto of more than FF 1,000,000 in
the aggregate, or (ii) require or would require performance by any party thereto
for more than three months from the date hereof (collectively, "Material
Contracts"). All Material Contracts are in full force and effect in all material
respects and there does not exist any material default or event or condition
that, after notice or lapse of time or both, would constitute a default
thereunder by the Company or any Subsidiary or, to the knowledge of the Sellers,
the Company or any Subsidiary, by any other party thereto.
(b) To the knowledge of the Sellers, the Company or any Subsidiary,
none of the rights of the Company or any Subsidiary under any Material Contract
will be subject to termination or modification as a result of the transactions
contemplated by this Agreement or any other Transaction
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Document, and no other party to any Material Contract would be entitled to any
additional fees or payments as a result of the consummation of the transactions
contemplated by this Agreement or any other Transaction Document.
2.18. Product Liability. To the knowledge of the Sellers, the Company
or any Subsidiary, neither the Company nor any Subsidiary has any obligation of
any nature (whether based on strict liability, negligence, breach of warranty,
breach of contract or otherwise) in respect of any product sold, packaged,
repackaged or labeled by the Company or any Subsidiary that (i) is not fully
and adequately covered by insurance policies, except for any thresholds
(franchises) in such policies which do not exceed those customary in the
business, and (ii) is not otherwise fully and adequately reserved against in
accordance with French GAAP (or German or Swiss GAAP, as the case may be),
applied on a basis consistent with their most recent financial statements.
2.19. Bank Accounts. Set forth on Schedule 2.19 is a complete and
correct list of each bank or other financial institution in which a line of
credit, checking or other account or safe deposit box is maintained by or for
the Company or any Subsidiary, the relevant number of such account or box, and
the name of each Person authorized to draw thereon or have access thereto.
2.20. Brokers. No investment banker, finder, broker or other
intermediary has been retained by or has acted for or on behalf of the Sellers,
any Affiliate of the Sellers, the Company or any of its Subsidiaries who might
be entitled to any fee or commission from the Company or any Subsidiary upon the
consummation of the transactions contemplated by this Agreement or any other
Transaction Document.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF XXXXXX AND THE BUYER
------------------------------
Xxxxxx and the Buyer, jointly and severally, represent and warrant to
the Sellers as follows:
3.1. Corporate Existence; Authorizations. (a) Xxxxxx is a corporation
duly organized and validly existing under the laws of Delaware. Xxxxxx has full
power and authority to execute this Agreement and each other Transaction
Document to which it is party, to perform its
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obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution and performance of this
Agreement and each other Transaction Document to which Xxxxxx is party and the
consummation by Xxxxxx of its obligations hereunder and thereunder have been
duly authorized by all requisite action of Xxxxxx. This Agreement constitutes
the legal, valid and binding obligation of Xxxxxx, enforceable against Xxxxxx
in accordance with its terms. Each other Transaction Document to which Xxxxxx
is party, when executed by Xxxxxx, xxxx constitute the legal, valid and binding
obligation of Xxxxxx, enforceable against Xxxxxx in accordance with its terms.
(b) The Buyer is a societe anonyme duly organized and validly existing
under the laws of France, and substantially all of the shares of its capital
stock are owned, directly or indirectly, by Xxxxxx. The Buyer has full power and
authority to execute this Agreement and each other Transaction Document to which
it is party, to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby. The purchase of the
Sellers' Shares, the execution and performance of this Agreement and each other
Transaction Document to which the Buyer is party and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
requisite action of the Buyer. This Agreement constitutes the legal, valid and
binding obligation of the Buyer, enforceable against the Buyer in accordance
with its terms. Each other Transaction Document to which the Buyer is party,
when executed by the Buyer, will constitute the legal, valid and binding
obligation of the Buyer, enforceable against the Buyer in accordance with its
terms.
(c) Except as set forth on Schedule 3.1(c), no consent or other
authorization of, or filing with, any Person is required by or on behalf of
Xxxxxx or the Buyer in connection with (i) the valid execution or performance of
this Agreement or any other Transaction Document by Xxxxxx and the Buyer or (ii)
the consummation by Xxxxxx and the Buyer of the transactions contemplated by
this Agreement or any other Transaction Document.
3.2. No Conflicts. Except as set forth on Schedule 3.2, the execution
and performance of this Agreement and the other Transaction Documents by Xxxxxx
and the Buyer and the consummation by Xxxxxx and the Buyer of the transactions
contemplated hereby and thereby will not
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violate or conflict with (i) any provision of the certificate of incorporation,
articles of association (statuts), by-laws or other organizational documents of
Xxxxxx or the Buyer, (ii) any law or regulation applicable to Xxxxxx or the
Buyer, (iii) any decision of any court, tribunal or governmental authority, or
(iv) any agreement or instrument to which Xxxxxx or the Buyer is a party.
3.3. Brokers. No investment banker, finder, broker or other
intermediary has been retained by or has acted for or on behalf of Xxxxxx or the
Buyer or any of their Affiliates who might be entitled to any fee or commission
from the Sellers or any of their Affiliates upon the consummation of the
transactions contemplated by this Agreement or any other Transaction Document.
ARTICLE 4
COVENANTS
---------
4.1. Conduct of the Business. From the date hereof to the Closing Date,
the Sellers shall cause the Company and its Subsidiaries to conduct their
business and operations only in the ordinary course of business and in a manner
consistent with past practice and to consult with Xxxxxx and the Buyer before
entering into or effecting any material transaction. Without limiting the
generality of the foregoing, from the date hereof to the Closing Date, except as
otherwise expressly consented to by Xxxxxx or the Buyer, the Sellers shall cause
the Company and its Subsidiaries:
(a) not to authorize or declare or pay any dividend, advance on
dividend, or other distribution on any capital stock of the Company or any
Subsidiary, or purchase or redeem, directly and indirectly, any shares of their
capital stock (or other equity interest),
(b) not to incur or commit to incur any indebtedness for borrowed money
in excess of FrF 500,000, and not to make or commit to any material capital
expenditures in excess of FrF 500,000, in each case either in a single
transaction or a series of related transactions,
(c) not to incur, assume, guaranty or otherwise become directly or
indirectly liable with respect to any liability or obligation of any Seller or
any Affiliate of any Seller,
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(d) not to forgive, cancel, waive or release any debt, claim or right
against any Seller or any Affiliate of any Seller,
(e) not to modify, amend or supplement any agreement or understanding,
or any provision or term of any agreement or understanding, with any Seller or
any Affiliate of any Seller,
(f) not to make any payment, in cash or other assets, to any Sellers or
any of their Affiliates, other than ordinary compensation in their capacity as
officers or employees of the Company and the Subsidiaries, in each case only in
accordance and consistent with past practice,
(g) to continue to pay their suppliers and receive payments from their
clients in accordance with past practices.
The Sellers shall promptly advise Xxxxxx and the Buyer of any event,
occurrence or condition that, individually or in the aggregate, could have a
Material Adverse Effect or that could result in the occurrence of any of the
matters set forth in clauses (a) through (g) of this Section 4.1.
4.2. Public Announcements and Confidentiality. (a) The Sellers, Xxxxxx
and the Buyer shall cooperate and consult with each other before issuing any
press release or otherwise making any public statement with respect to this
Agreement or the other Transaction Documents or the transactions contemplated
hereby or thereby. Without limiting the foregoing sentence, without the prior
consent of the other party, neither the Sellers nor Xxxxxx or the Buyer shall,
and the Sellers shall cause the Company not to, issue any press release or
otherwise make any public statement with respect to the transactions
contemplated by this Agreement and the other Transaction Documents, or disclose
the existence of this Agreement or the other Transaction Documents or the
contents hereof or thereof, except as required by applicable laws and
regulations, in which case the party required to disclose shall promptly notify
the other party and the parties shall cooperate and consult with each other to
the maximum extent possible.
(b) The Sellers shall not, and shall cause their Affiliates not to, use
or disclose to any Person any proprietary or confidential information relating
to the Company or any Subsidiary, their business and operations, or
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any of their assets, except with the prior consent of Xxxxxx or the Buyer or
as required by applicable laws or regulations, in which case such Person shall
provide Xxxxxx and the Buyer prompt notice of such requirement.
(c) It is understood and agreed that the parties hereto remain bound by
the Confidentiality Agreement dated as of September 10, 1996, provided, however,
that Xxxxxx and the Buyer may disclose such information concerning the
transactions contemplated by this Agreement and the other Transaction Documents
as may be necessary or useful in connection with obtaining the financing for the
transactions contemplated hereby.
4.3. Non-Competition. Prior to the third anniversary of Closing Date,
none of the Sellers shall, directly or indirectly, own, manage, operate, join,
control, participate or have any interest in or be connected with, as a partner,
shareholder, director, officer, employee, advisor or consultant, any Person that
conducts or engages in the distribution, marketing or sale of laboratory
supplies, chemicals or instruments in the Czech Republic, Belgium, France,
Germany, Hungary, Luxembourg, The Netherlands, Switzerland or the United
Kingdom; provided that this Section 4.3 shall not prohibit the Sellers from
owning, solely as an investment, securities of a publicly-traded company so long
as the Sellers do not, individually and in the aggregate, own or control more
than 2% of the voting stock of such company.
4.4. Due Diligence Investigations; Information. From the date hereof to
the Closing Date, the Sellers shall (i) furnish Xxxxxx, the Buyer, and their
legal, accounting and other advisors, with all the financial, legal, and
operating data and other documents and information with respect to the business,
operations and properties of the Company and its Subsidiaries as Xxxxxx, the
Buyer and their legal, accounting and other advisors shall from time to time
reasonably request for the purpose of having full and accurate knowledge of the
business, legal and financial situation of the Company and its Subsidiaries,
(ii) instruct the Company and its Subsidiaries, as well as their legal,
accounting and other advisors, to cooperate with Xxxxxx, the Buyer and their
legal, accounting and other advisors, in connection with their investigations
of the Company and its Subsidiaries, and (iii) keep, and shall cause the
Company and its Subsidiaries, to keep Xxxxxx, the Buyer and their legal,
accounting and other advisors, generally informed as to the business and
operations of the Company and its
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Subsidiaries. Any investigation conducted by Xxxxxx, the Buyer and their legal,
accounting and other advisors pursuant to this Section 4.4 shall be conducted
in such manner as not to interfere unreasonably with the conduct of the
business and operations of the Company and its Subsidiaries.
4.5. Further Actions and Assurances. (a) Each of the parties shall use
its best efforts and shall cooperate with each other to take or cause to be
taken all actions necessary or desirable to consummate the transactions
contemplated by this Agreement and the other Transaction Documents, including
the satisfaction by the Sellers of all the conditions contained in Section
1.2(c) and the satisfaction by Xxxxxx and the Buyer of all conditions contained
in Section 1.2(b).
(b) From time to time after the Closing, the Sellers, Xxxxxx and the
Buyer shall, each at its own expense, execute and deliver, or cause to be
executed and delivered, such additional documents and instruments, or take such
other actions, as may be reasonably requested by the other party to render
effective the consummation of the transactions contemplated by this Agreement
and the other Transaction Documents or otherwise to carry out the intent and
purposes of this Agreement and the other Transaction Documents.
4.6. Tender Offer; Other Stock Exchange Transactions. (a) Following the
consummation of the transaction contemplated by this Agreement, the Buyer shall
file with the CMF a request to be authorized to carry out a tender offer
(offre publique d'achat - "tender offer") by implementing the procedure for
maintaining an offer to purchase the Public Shares at the same price as the
price paid for Seller's Shares hereunder (or such lower price as may has been
agreed with the CMF) (garantie de cours), pursuant to Section 5-3-5 of the
Reglement General of the CBV (the "Tender Offer").
(b) Each of the Sellers shall use his or her best efforts to cooperate
with the buyer, to take or cause to be taken all actions and measures, necessary
or desirable, in connection with any necessary filing with and/or any request
for authorization or consent from, the SBF, the COB, the CMF and the Company,
relating to the implementation of the Tender Offer or any subsequent stock
exchange transactions
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that the Buyer may implement with respect to the shares of the Company, or any
other requirements under applicable French securities laws and regulations.
(c) [EACH OF THE SELLERS] [PIERRE BLOCK] shall use his [or her] best
efforts to assist Xxxxxx and the Buyer in their efforts to acquire more than 95%
of the outstanding shares and voting rights of the Company by way of the Tender
Offer and in particular shall take the necessary steps to identify all other
shareholders of the Company who hold [20,000] Shares or more (the "Principal
Minority Shareholders"), and to obtain written commitments from such Principal
Minority Shareholders that they shall sell and transfer to the Buyer all of his
or her Shares in response to the Tender Offer.]
ARTICLE 5
INDEMNIFICATION
---------------
5.1. Indemnification by the Sellers. (a) The Sellers shall indemnify
and hold harmless the Buyer from and against any and all claims, increases in
liabilities (augmentation de passif) reduction in assets (diminution d'actif),
losses, damages, costs and expenses (including interest, penalties and
reasonable attorneys' and accountants' fees and disbursements) with respect to
the Company or any of its Subsidiaries (or any of their successor entities),
whether or not resulting from third party claims (each of the foregoing being
referred to herein individually as a "Loss", and collectively as "Losses"),
arising out of or as a result of (i) any inaccuracy of or omission in any
representation or warranty made by the Sellers in this Agreement or any other
Transaction Document, or (ii) any breach by the Sellers or their Affiliates of
any covenant or obligation of the Sellers in this Agreement or any other
Transaction Document.
(b) Each Seller shall be responsible for his or her pro rata share of
any amounts due by the Sellers to the Buyer pursuant to Section 5.1 (a), based
on his or her proportionate share of the aggregate of the Share Purchase Price
and the Interests Purchase Price.
5.2. Indemnification by Xxxxxx and the Buyer. Xxxxxx and the Buyer
shall, jointly and severally, indemnify and hold harmless the Sellers from and
against any and all claims, liabilities, losses, damages, costs and expenses
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(including interest, penalties and reasonable attorneys' and accountants' fees
and disbursements) arising out of or as a result of (i) any inaccuracy of or
omission in any representation or warranty made by Xxxxxx or the Buyer in this
Agreement or any other Transaction Document, or (ii) any breach by Xxxxxx or the
Buyer of any covenant or obligation of Xxxxxx or the Buyer in this Agreement or
any other Transaction Document.
5.3. Survival of Representations and Warranties. Any and all claims for
indemnification arising out of or as a result of any inaccuracy of any
representation or warranty contained in this Agreement may be made until [insert
date that is end of three full fiscal years after the Closing Date plus 60
days], provided that claims relating to tax obligations of the Company and/or
the Subsidiaries shall only expire 90 days after the end of the applicable
statute of limitations for the tax filings of the Company and the Subsidiaries
relative to their 1998-1999 fiscal year.
5.4. De Minimus; Limitations; Mitigation; Assignment; Access to
Information. (a) The Sellers shall not be obligated to indemnify and hold
harmless the Buyer pursuant to Section 5.1 unless and until the aggregate amount
of all claims against the Sellers under Section 5.1 exceeds FF 2,500,000, and
then only to the extent such aggregate amount exceeds FF 2,500,000.
(b) The aggregate amount the Sellers shall be obligated to indemnify
and hold harmless the Buyer pursuant to clause (i) of Section 5.1 shall not
exceed the aggregate of the Share Purchase Price and the Interests Purchase
Price.
(c) The Sellers' obligation to indemnify and hold harmless the Buyer
pursuant to clause (i) of Section 5.1 with respect to any Loss will be limited
to [75.92%] of such Loss.
(d) Any party entitled to indemnification under this Article 5 shall
use commercially reasonable efforts to mitigate any liability, loss, damage,
cost and expense for which indemnification is sought hereunder.
(e) At the Buyer's request, the Sellers shall pay to the Company or the
Subsidiaries (or their successors) all amounts payable by any Sellers under this
Article 5.
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(f) The Buyer shall provide the Sellers access to the books and records
of the Company and its Subsidiaries, during normal business hours and so long as
it does not unreasonably interfere with the business and operations of the
Company and its Subsidiaries, in connection with the matters for which any
payment is sought under Section 5.1; provided that, prior to being provided such
access, the Sellers and the Buyer shall have entered into an appropriate
confidentiality agreement with respect to the information to be provided to the
Sellers.
5.5. Calculation of Amount of Loss; Adjustments. (a) The amount of any
indemnity payment by Sellers under Section 5.1 shall be limited to the amount of
the actual Loss sustained by the Buyer, as adjusted pursuant to this Section
5.5, and subject to the provisions of clause (c) of Section 5.4.
(i) The amount of the Loss to be taken into account when determining
the payment due by the Sellers pursuant to Section 5.1 shall be (i) reduced
(but not below zero) by an amount equal to the Tax benefits (economies
d'impots), if any, attributable to the Loss giving rise to such payment and
actually realized, and (ii) increased by an amount equal to the Taxes, if
any, attributable to the receipt of such payment (including payments
pursuant to this Section 5.5 and the amount of current or carry forward
tax losses or credits utilized to offset Taxes otherwise due on payments
made by the Seller pursuant to this Article 5), but only to the extent such
Tax benefits (economies d'impots) are actually realized or such Taxes are
actually paid (or, for current or carry forward tax losses or credits, to
the extent such losses or credits are actually utilized) by the Buyer, the
Company and the subsidiaries on a consolidated basis. The parties
acknowledge that on a consolidated basis shall mean only the Buyer, the
Company and their respective subsidiaries. The timing of any indemnity
payment due from the Sellers to the Buyer under this Article 5 shall not be
affected by the realization of any Tax benefits or payment of any Taxes; the
Seller shall promptly pay indemnity payments pursuant to this Article 5, and
(x) when the Buyer or the Company (or a subsidiary) realizes a Tax benefit
(economie d'impots), if any, attributable to the Losses in respect of which
such indemnity payments were made, the Buyer shall pay the Seller the net
amount of such Tax benefit (economie
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d'impots), and (y) when the Buyer or the Company (or a subsidiary) is
obligated to pay any Taxes (or, for current or carry forward tax losses or
credits, utilize any such losses or credits) attributable to the receipt of
such indemnity payment, the Seller shall pay the net amount of such Tax
payment (or, for current or carry forward tax losses or credits, the amount
of such losses or credits actually utilized).
(ii) The timing of any indemnity payment due from the Sellers to the
Buyer under this Article 5 shall not be affected by the existence of any
insurance policy of the Company or any Subsidiary or any indemnification
obligation of another Person to the Company or any Subsidiary. If a Loss is
covered by such insurance policy or indemnification obligation, the Buyer
shall use commercially reasonable efforts to cause the insurance or
indemnity payments with respect thereto to be collected. If such insurance
proceeds or indemnity payments are recovered prior to the Buyer's being
indemnified and held harmless by the Sellers with respect to such Loss,
the amount of the Loss to be taken into account when determining the
payment due by the Sellers with respect to such Loss shall be reduced by
the net amount of the insurance proceeds or indemnity payments theretofore
recovered, less attorney's fees and other expenses incurred in connection
with such recovery. If such insurance proceeds or indemnity payments are
recovered after the Buyer has been indemnified and held harmless by the
Sellers with respect to such Loss, the Buyer shall pay to the Sellers the
appropriate portion of the net amount of the insurance proceeds or
indemnity payments thereafter recovered, less attorney's fees and other
expenses incurred in connection with such recovery.
(b) The amount of any indemnity payment under Section 5.2 shall be
limited to the amount of the actual liability, loss, damage, costs and expenses
sustained by the Sellers.
5.6. Indemnification Procedures. (a) For the purposes of this Section
5.6, the party seeking indemnification shall be known as the "Indemnified
Party", and the party from whom indemnification is sought shall be known as the
"Indemnifying Party". As promptly as practicable after an Indemnified Party
becomes aware of any Loss in respect of which an Indemnifying Party may be
liable under this Article 5, the Indemnified Party shall give
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notice thereof (the "Indemnification Notice") to the Indemnifying Party. The
Indemnification Notice shall state the reason for the indemnification claim and
the amount or estimate of the amount that may be due under this Article 5, and
shall provide relevant documentary evidence regarding such claim and the
proposed indemnification amount. The failure of any Indemnified Party to give
such notice shall not relieve the Indemnifying Party of its indemnification
obligations under this Article 5, except to the extent such failure results in
a lack of actual notice to the Indemnifying Party and the Indemnifying Party is
materially prejudiced as a result of failure to receive such notice. Within 30
days of receipt of an Indemnification Notice in accordance with this
Section 5.6, the Indemnifying Party shall pay the Indemnified Party the amount
specified in such Indemnification Notice, unless the Indemnifying Party
delivers a notice of disagreement with the relevant indemnification claim
within 15 days of its receipt of such Indemnification Notice.
(b) In the case of any claim asserted by a third party, the Indemnified
Party shall (i) deliver the Indemnification Notice to the Indemnifying Party
promptly after receipt of such claim, and (ii) except with respect to claims
relating to Taxes or Social Charges, permit the Indemnifying Party, at its
option and expense, to take over and assume the defense of any such claim by
counsel satisfactory to the Indemnified Party and to settle or otherwise dispose
of the same; provided that the Indemnified Party may at its discretion at all
times participate, at its own expense, in such defense by counsel of its own
choice. The Indemnifying Party shall not, in defense of any such claim, except
with the prior written consent of the Indemnified Party, enter into any
settlement that does not include, as an unconditional term thereof, the giving
by the claimant or plaintiff in question to the Indemnified Party and its
Affiliates a release of all liabilities in respect of such claims.
(c) If the Indemnifying Party does not elect to assume the defense of
any claim (other than claims relating to Taxes or Social Charges) within 30 days
of delivery of the Indemnification Notice, the Indemnified Party shall have the
right to take over and assume the defense of any such claim and, in the case of
any claims relating to Taxes or Social Charges, the Indemnified Party shall take
over and assume the defense of any such claim. The Indemnified Party shall be
entitled to settle or agree to pay in full any such claim; provided that (i) the
Indemnified Party shall not
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settle such claims without the prior written consent of the Indemnifying Party,
provided that such consent cannot be unreasonably withheld and (ii) the
Indemnified Party shall, at all times and to the maximum extent possible, keep
the Indemnifying Party informed of the status of such claim and the proceedings
related thereto.
ARTICLE 6
DEFINITIONS
-----------
6.1. Certain Defined Terms. The following terms, as used in this
Agreement, have the following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with,
such Person. Control of any Person shall consist of the power to direct the
management and policies of such Person and, in any event, shall be deemed to
exist upon the ownership of securities entitling the holder thereof to exercise
more than 50% of the voting power in the election of directors of such Person
(or other persons performing similar functions). Prior to the Closing, each
Seller shall constitute an Affiliate of the Company (and of each Subsidiary) and
the Company shall constitute an Affiliate of each Seller (and of each
Subsidiary). Each Seller shall constitute an Affiliate of each other Seller, and
in the event the Sellers and their Affiliates jointly (but not individually)
control a Person, each Seller shall constitute an Affiliate of such Person.
"CBV" means the Conseil des Bourses de Valeurs.
"CMF" means the Conseil des Marches Financiers.
"Closing Date" means the date of the Closing in accordance with Section
1.2.
"COB" means the Commission des Operations de Bourse.
"Excess Cash" means cash (disponibilites) and short term investment
securities (valeurs mobilieres de placement) other than treasury shares (actions
propres).
"FF" means the lawful currency of France.
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"French GAAP", "German GAAP" and "Swiss GAAP" means the accounting
principles and practices generally accepted from time to time in France, Germany
and Switzerland, respectively.
"Lien" means any mortgage, lien, pledge, charge, security interest,
encumbrance or other adverse claim.
"Material Adverse Effect" means a material adverse effect on the
condition (financial or otherwise), properties, business, results of operations
or prospects of the Company and its Subsidiaries, taken as a whole.
"Person" means an individual, corporation, trust or other entity,
including a governmental or political subdivision or an agency or
instrumentality thereof.
"SBF" means the Societe des Bourses Francaises.
"Social Charges" means any social security, unemployment, old age
pension, pension scheme, family allocation and other social charges or
contributions, to the extent any of the foregoing are required by applicable
laws, regulations or collective bargaining agreements.
"Subsidiary" means any corporation, partnership or other Person in
which the Company owns or controls, directly or indirectly, capital stock or
other equity interests representing more than 50% of the outstanding voting
securities or other equity interests.
"Taxes" means any income, profits, receipts, sales, value added,
transfer, registration, business, franchise, capital, withholding, payroll,
employment, property or customs tax, duty, governmental fee or other like
assessment or charge, together with any interest or penalty, imposed by any
governmental authority, or liability for the payment of any of the foregoing
(including as a result of any obligation to indemnify any other Person with
respect to any such taxes, duties, fees, assessments or charges).
"Transaction Documents" means this Agreement, the employment agreement
between Pierre Block and [the Company][the Buyer] in the form of Annex 5A, the
employment agreement between Xxxx-Xxxxxxxxx Block and the Company in the form of
Annex 5B, the employment agreement between Pierre-Francois Block and the Company
in the form of Annex 5C; and "Transaction Document" means any of the foregoing.
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6.2. Other Defined Terms. Each of the following terms is defined in the
section set forth below opposite such term:
Affiliate Company.......................................Section 2.4
Agreement..............................................Introduction
Buyer..................................................Introduction
Closing.................................................Section 1.2
Collective Labor Agreements.........................Section 2.14(b)
Company...................................................Recital A
Subsidiaries..............................................Recital C
Financial Statements.................................Section 2.6(b)
Xxxxxx.................................................Introduction
ICC Rules............................................Section 7.3(a)
Indemnification Notice..................................Section 5.6
Indemnified Party.......................................Section 5.6
Indemnifying Party......................................Section 5.6
Interests Purchase Price.............................Section 1.1(b)
Leases..............................................Section 2.12(b)
Loss(es)................................................Section 5.1
Material Contract(s)...................................Section 2.17
Principal Minority Shareholders......................Section 4.6(c)
Public Shares.............................................Recital B
Sellers................................................Introduction
Sellers' Shares...........................................Recital B
[SELLERS' INTERESTS]......................................Recital C
Shares....................................................Recital A
Share Purchase Price.................................Section 1.1(a)
Tender Offer.........................................Section 4.6(a)
ARTICLE 7
MISCELLANEOUS
-------------
7.1. Termination. (a) This Agreement may be terminated at any time
prior to Closing:
(i) By the written agreement of Pierre Block and the Buyer; and
(ii) If Xxxxxx and the Buyer, on the one hand, or the Sellers, on the
other hand, commit a material breach of any provision of this Agreement or
any other Transaction Document and such breach or default is not cured
within ten days of delivery of notice thereof by the opposite party, upon
notice by such opposite party to the breaching party.
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(b) Article 5 and Sections 7.2, 7.3, 7.6, 7.8 and 7.10 shall survive
any termination of this Agreement.
7.2. Governing Law. This Agreement shall be governed by and construed
in accordance with French law.
7.3. Arbitration. (a) In the event the parties are not able to settle
amicably any dispute arising in connection with this Agreement, such dispute
shall be finally settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce (the "ICC Rules") in effect on the date
hereof, except as modified herein.
(b) The arbitration shall be conducted by three arbitrators appointed
in accordance with such ICC Rules. Each of the arbitrators shall be fluent in
English and French and shall have a working knowledge of French law. For
purposes of appointing arbitrators hereunder, Xxxxxx and the Buyer shall be
considered one party and the Sellers shall jointly be considered one party. The
arbitration shall be held in [Brussels]. Arbitration proceedings shall be
conducted in English and French, and the parties may submit testimony or
documentary evidence in English or French.
(c) Any award rendered by the arbitrators shall be in writing and shall
be final and binding upon the parties. Judgment upon the arbitration award
rendered or any order for enforcement may be entered in any court having
jurisdiction. The costs of the arbitration and the enforcement of the award
shall be borne by the party against whom the arbitration award was rendered (as
such issue is determined by the arbitration panel).
7.4. Amendments, etc. This Agreement, or any term hereof, may be
amended, waived, discharged or terminated only by a written instrument signed by
all the parties hereto. Notwithstanding anything to the contrary in the
foregoing, each of Sellers other than Pierre Block hereby irrevocably appoint
Pierre Block to take any and all actions on their behalf in connection with this
Agreement and the Transaction Documents; and Xxxxxx and the Buyer may act and
rely upon any statement, agreement or action given, made or taken by Pierre
Block on behalf of any Seller with respect to this Agreement and the other
Transaction Documents and the transactions contemplated hereby and thereby, and
any such statement, agreement or action by Pierre Block shall be binding upon
each Seller.
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7.5. Assignment. This Agreement may not be assigned or otherwise
transferred by any party hereto without the prior written consent of the other
parties.
7.6. Notices. All notices, consents, requests and other communications
provided for in this Agreement shall be in writing and shall be deemed validly
given upon personal delivery or one day after being sent by telecopy (so long as
for notices sent by telecopy, a copy is also sent on the same day by registered
mail, acknowledgment of receipt requested), at the following address or telecopy
number, or at such other address or telecopy number as a party may designate by
written notice to the other party:
(a) If to any Seller, at:
c/o Xx. Xxxxxx Block
0 xxx xx xx Xxxx x'Xxxx
00000 Xxxxxxxxxx
(Xxxxxx)
Telecopy: (00) 00-00-00-00
(b) If to Xxxxxx or the Buyer, at:
Xxxxxx Scientific International Inc.
Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxxxxx 00000
(U.S.A.)
Telecopy: (0-000) 000-0000
Attention: General Counsel
7.7. Expenses. The Sellers, on the one hand, and Xxxxxx and the Buyer,
on the other hand, shall bear and pay all their own respective costs and
expenses in connection with the consummation of the transactions contemplated
by this Agreement and the other Transaction Documents, including the fees and
expenses of any legal counsel, accountant, broker, financial or other advisor
engaged by such parties. The Sellers agree that in no event shall the Company
or any Subsidiaries pay for or incur any costs or expenses as a result of the
transactions contemplated by this Agreement or any other Transaction Document,
other than remuneration due pursuant to the employment agreements with the
Company.
7.8. Severability. If any provision of this Agreement is held to be
invalid or unenforceable for any reason, it shall be adjusted rather than
voided, if possible, in order to achieve the intent of the parties to
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this Agreement to the maximum extent possible. In any event, the invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity or enforceability of the remainder of this Agreement in
that jurisdiction or the validity or enforceability of this Agreement,
including that provision, in any other jurisdiction.
7.9. No Third Party Beneficiaries. Nothing in this Agreement shall be
construed as giving any Person, other than the parties hereto and their
successors and permitted assignees, any right, remedy or claim under or in
respect of this Agreement or any provision hereof.
7.10. Language. The French version of this Agreement is attached as
Annex 6. The English and the French versions shall be both valid and binding and
shall be given equal weight when interpreting the rights and obligations of the
parties.
7.11. Integration. This Agreement and the other Transaction Documents
(including the annexes, schedules and exhibits hereto and thereto), [the
Confidentiality Agreement executed among the parties as of September 10, 1996]
and the other documents delivered pursuant hereto and thereto constitute the
full and entire understanding and agreement of the parties and supersede any and
all prior agreements, arrangements and understandings relating to the subject
matters hereof and thereof.
7.12. Section Headings. The section headings of this Agreement are for
convenience of reference only and are not to be considered in construing this
Agreement.
7.13. Execution Copies. This Agreement shall be executed in eight
original copies, each of which shall be an original.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement at the date first above written.
XXXXXX SCIENTIFIC INTERNATIONAL INC.
By:
-------------------------------
Name:
Title:
XXXXXX SCIENTIFIC HOLDINGS FRANCE S.A.
By:
-------------------------------
Name:
Title:
CAPIAC
By:
-------------------------------
Name:
Title:
Pierre BLOCK
------------------------------
Xxxx-Xxxxxxxxx BLOCK
------------------------------
Pierre-Francois BLOCK
------------------------------
Xxxxxxxx BLOCK
------------------------------
Mathe BLOCK
------------------------------
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[TO BE VERIFIED] ANNEX 1
-------
SHARE OWNERSHIP OF BIOBLOCK SCIENTIFIC
--------------------------------------
SHARES VOTING RIGHTS
------ -------------
Capiac 492,750 985,500
[315,000] [630,000]
remainder interest (detenues en
nue-propriete), in which Shares the
usufruct (life) interest is owned
by Xxxxxx Xxxxx
Xxxxxx Xxxxx 000,000 1,142,122
[315,000] [630,000]
(usufruct (life) interest),
in which Shares the remainder
interest (detenues en nue-propriete)
is owned by Capiac
Xxxx-Xxxxxxxxx Block 49,900 99,800
Pierre-Francois Block 49,900 99,800
Xxxxxxxx Block 49,900 99,800
Mathe Block 950 1,900
--------- ---------
Sellers' Shares 1,529,461 3,058,922
Initial Buyer
Shares 25,000 25,000
Public Shares 493,039 500,806
--------- ---------
TOTAL 2,047,500 3,590,728
========= =========
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