EXHIBIT 10.33
SHARE PURCHASE AGREEMENT
DATED AS OF NOVEMBER 10, 2004
AMONG
INTEGRA LIFESCIENCES CORPORATION
AND
XX. XXXX XXXXXXXXX
XX. XXXX XXXXXXX
XX. XXXX-XXXXXXXXXX XXXX
XX. XXXXXXXX GAUNEAU
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SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (the "Agreement") is made and entered into on
November 10, 2004:
Between:
INTEGRA LIFESCIENCES CORPORATION, a Delaware (USA) corporation located at 000
Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000, Xxxxxx Xxxxxx of America ("Integra"), or
any subsidiary of Integra that it may designate for such purpose, Integra or
such subsidiary being duly represented by Xxxx X. Xxxxxxxx, III.
(hereinafter referred to together as the "Purchaser")
ON THE ONE HAND
and:
1. Xxxx Xxxxxxxxx, born on January 27, 1967 in Rueil Malmaison (France),
residing at 0 Xxxxx x'Xxxxxxxxxxx 00000 Xxxx, Xxxxxx (hereinafter referred to as
"Fourcault");
2. Xxxx Xxxxxxx, born on August 26, 1959 in Neerpelt (Belgium), residing at
Xxxxxxxxxx Xxxxxxxx 000, Xxxxxxxxxx 0000, Xxxxxxx (hereinafter referred to as
"Knevels");
3. Xxxx-Xxxxxxxxxx Xxxx, born on Xxxxxxxx 0, 0000, xx Xxxx (Xxxxxx), residing at
0 xxx Xxxxxxxxx xxx Xxxxxx 00000 Xxxx, Xxxxxx (hereinafter referred to as
"Giet");
4. Xxxxxxxx Xxxxxxx, born on June 6, 1967, in Paris, residing at 00 xxx xx xx
Xxxxxxxxx 00000 Xxxx, Xxxxxx (hereinafter referred to as "Gauneau").
ON THE OTHER HAND
(hereinafter collectively referred to as the "Sellers" and individually as a
"Seller", it being understood and agreed that Fourcault, Knevels and Giet are
acting jointly and severally (conjointement et solidairement) subject to the
terms of Section 7.1(b)).
The Sellers and the Purchaser are hereinafter collectively referred to as the
"Parties" and individually as a "Party".
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PREAMBLE
WHEREAS, the Purchaser desires to buy all of the issued and
outstanding shares of NEWDEAL TECHNOLOGIES, a societe anonyme organized under
the laws of France, with a capital of Euros 75,000, having its registered office
at 00, Xxxxx x'Xxxxxxxx 00000 Xxxx, Xxxxxx, registered with the Registry of
Commerce and Companies in Lyon under number 440 570 323 (hereinafter referred to
as the "Company");
WHEREAS, the Company holds 99,9% of all of the issued and
outstanding shares of (a) SURFIX TECHNOLOGIES, a societe anonyme organized under
the laws of France, with a capital of Euros 120,000, having its registered
office at 0, xxxxxx Xxxxx Xxxxx, Xxxx Xxxxxxxxx des Gresillieres 44230 Xxxxx
Xxxxxxxxx xxx Xxxxx, Xxxxxx, registered with the Registry of Commerce and
Companies in Nantes under number 392 424 396 (hereinafter referred to as
"Surfix"), and (b) NEWDEAL, a societe anonyme organized under the laws of
France, with a capital of Euros 1,000,000, having its registered office at 00,
Xxxxx x'Xxxxxxxx 00000 Xxxx, Xxxxxx, registered with the Registry of Commerce
and Companies in Lyon under number 412 111 510 (hereinafter referred to as
"Newdeal France"), which in turns holds (i) 99,9% of all of the issued and
outstanding shares of ND SERVICE, organized under the laws of Belgium, with a
capital of Euros370.000, having its registered office at Xxxxxxxxxx Xxxxxxxx
000, Xxxxxxxxxx 0000, Xxxxxxx, registered with the Registry of Commerce and
Companies in Brusselsunder number639383 (hereinafter referred to as "Newdeal
Belgium"), and (ii) 100% of all of the issued and outstanding shares of NEWDEAL
Incorporated, a Texas corporation, having its principal place of business at
0000 Xxxxxxxxxxx, Xxxxx XX 00000 (hereinafter referred to as "Newdeal USA")
(collectively referred to as the "Subsidiaries" and, together with the Company,
as the "Companies").
WHEREAS, the Company, directly or indirectly through one or more of
its Subsidiaries, designs, manufactures (through arrangements with third
parties), markets and sells certain implants and other medical devices, and in
particular foot-extremities, ankle surgery devices, osteosynthesis plates and
screws for use in the tibia, femur, and humerus, and certain related spare parts
and sundries (the "Products") and markets, distributes and sells the Products
throughout the world (all of the foregoing, the "Business");
WHEREAS, the Sellers are, or immediately prior to the Closing (as
defined below) will be, the owners of the Company Shares allocated as indicated
in Exhibit 4.5.(a) hereto; and
WHEREAS, the Purchaser desires to purchase all of the Company Shares
from the Sellers, and the Sellers desire to sell the Company Shares owned by
them to the Purchaser, all upon the terms and conditions hereinafter set forth,
and in particular subject to the Company being, directly or indirectly, the
holder of 100% of all of the issued and outstanding shares of each of the
Subsidiaries;
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NOW, THEREFORE, in consideration of the premises, the mutual
covenants, agreements, representations, and warranties herein contained, and
other good and valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged, the Parties hereto, intending to be legally
bound, hereby agree as follows:
1. Definitions. The following terms shall have the following meanings ascribed
to them:
1.1. "Adjustment Statement" is defined in Section 2.5.1(a).
1.2 "Anniversary Date" is defined in Section 2.3(b)
1.3 "Anniversary Payment" is defined in Section 2.3(b)
1.4 "Acquisition Price" is defined in Section 2.2
1.5 "Base Working Capital" shall mean three million nine hundred thirty
three thousand five hundred forty six (3,933,546) Euros, equal to,
as of June 30, 2004, (i) the current assets of the Companies
(excluding cash and cash equivalents), less (ii) the operating
liabilities of the Companies, calculated in the manner set forth in
detail on Exhibit 2
1.6. "Business" shall have the meaning ascribed to it in the Preamble of
this Agreement.
1.7. "Cap" is defined in Section 7.2(b).
1.8. "Closing" is defined in Section 3.1.
1.9. "Closing Balance Sheet" is defined in Section 2.5.1(a).
1.10. "Closing Date" is defined in Section 3.1.
1.11 "Closing Working Capital" shall mean an amount, calculated in all
respects in the same manner as the calculation of Base Working
Capital, equal to (i) the current assets of the Companies (excluding
cash and cash equivalents) as of the end of the day on the Closing
Date, less (ii) the operating liabilities of the Companies as of the
end of the day on the Closing Date, and all as finally determined
pursuant to Section 2.5.
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1.12. "Company" shall have the meaning ascribed to it in the Preamble of
this Agreement.
1.13. "Company Intellectual Property Rights" is defined in Section
4.22(b).
1.14. "Company Shares" shall mean 100 % (one hundred percent) of the
stated capital of the Company, i.e. seventy five thousand (75,000
shares) of the Company.
1.15. "Companies" means the Company and its Subsidiaries collectively.
1.16. "Confidential Information" is defined in Section 4.22(n).
1.17. "Contract" means, whether written or oral, any commitment,
agreement, arrangement, lease, franchise, permit, license,
obligation, mortgage, instrument, Distribution Agreement or other
document to which any of the Sellers or any of the Companies is a
party.
1.18. "Control" is defined in Section 4.1.
1.19. "Damages" is defined in Section 7.1(a).
1.20 "Deductible"is defined in Section 7.2(a)
1.21. "Demonstration Inventory" means any Products held by any of the
Companies, Distributors or hospitals on behalf of any of the
Companies for purposes of demonstration, or training and that are
not new and saleable.
1.22. "Distribution Agreement" means any agreement, whether written or
oral, that any of the Companies or any of the Sellers, acting on
behalf of any of the Companies or the Business, has with any Person
or entity regarding the distribution, offer for sale, detailing,
re-selling, wholesaling or representation of the Products anywhere
in the world.
1.23. "Distributor" means any Person or entity that is a party to a
Distribution Agreement.
1.24 "Estimated Post-Closing Adjustment" means the amount reported by the
Sellers to the Purchaser not later than ten (10) days prior to the
Closing Date as their good faith estimate of the amount of the
Post-Closing Adjustment with supporting documentation.
1.25. "Final Adjustment Statement" is defined in Sections 2.5.1 and 2.5.2.
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1.26. "Final Closing Balance Sheet" is defined in Sections 2.5.1 and
2.5.2.
1.27. "Financial Statements" means (i) the audited financial statements
(i.e., balance sheet (bilan) and statement of income (compte de
resultat)) of (a) the Company for the year ended December 31, 2003,
(b) Surfix for the year ended Xxxxxxxx 00, 0000, (x) Xxxxxxx Xxxxxx
for the year ended June 30, 2003, and (d)Newdeal France for the six
months ended December 31, 2003; (ii) the non-audited financial
statements (i.e., balance sheet (bilan) and statement of income
(compte de resultat)) of (a) Newdeal USA for the year ended December
31, 2003, (b) the Company for the six months ended June 30, 2004,
(c) Surfix for the six months ended Xxxx 00, 0000, (x) Xxxxxxx
Xxxxxx for the six months ended June 30, 2004, (e) Newdeal Belgium
for the six months ended June 30, 2004, (f) Newdeal USA for the six
months ended Xxxx 00, 0000, (x) Xxxxxxx Xxxxxxx for the year ended
June 30, 2003 and (h) Newdeal Belgium for the six months ended
December 31, 2003; and (iii) the non-audited pro forma consolidated
financial statements (i.e., balance sheet (bilan) and statement of
income(compte de resultat)) of the Company for the six months ended
June 30, 2004.
1.28. "Local GAAP", for each Company, means generally accepted accounting
principles (Principes Comptables Generalement Admis), in the country
in which such Company is incorporated, consistently applied.
1.29. "Full Liability Matters" means any matter that is not subject to the
Threshold, the Deductible, or the Cap pursuant to Section 7.2
hereof.
1.30. "Government Approvals" means authorizations, licenses or approvals
issued by any regulatory agency and including but not limited to
establishment licenses, authorizations or approvals relating to
product registration, or manufacturing, sales or marketing.
1.31. "Governmental Authority" means any court, arbitration tribunal,
administrative agency or commission or other governmental or
regulatory authority or agency in any country or political
subdivision or jurisdiction thereof.
1.32. "Independent Accounting Firm" is defined in Section 2.5.2.
1.33. "In-Licensed Intellectual Property Rights" is defined in Section
4.22(i).
1.34. "Integra" shall have the meaning ascribed to it on the first page of
this Agreement.
1.35. "Intellectual Property Rights" is defined in Section 4.22(a).
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1.36. "Interim Balance Sheet" means the non-audited balance sheet of the
Companies as at June 30, 2004 in the form attached hereto as Exhibit
3.
1.37. "Inventory" means raw materials, parts, supplies, work-in-process,
finished Products that are reflected on a balance sheet less
applicable reserves.
1.38. "Lien" means any mortgage, lien, claim, charge, restriction, right,
option, conditional or installment sales agreement, pledge,
restriction or limitation of use, easement or other claim of
ownership or use, or other encumbrance of any kind affecting the
Sellers or any of the Companies.
1.39. "Material Adverse Effect" means any change, effect, condition,
factor or circumstance that would have a material detrimental effect
on the condition (financial or otherwise), results of operation,
cash flow, assets, liabilities, properties, business, or prospects
of any of the Companies or the Business.
1.40. "Person" is defined in Section 4.1.
1.41. "Post-Closing Adjustment" shall mean (i) the Closing Working
Capital, less (ii) the Base Working Capital, plus (iii) cash and
cash equivalents of the Companies on the Closing Date, less (iv)
financial indebtedness of the Companies on the Closing Date. For the
purposes of calculating the Post-Closing Adjustment, cash and cash
equivalents and financial indebtedness of the Companies on the
Closing Date shall be calculated in all respects in the same manner
as calculated as of June 30, 2004 on Exhibit 4
1.42. "Products" shall have the meaning ascribed to it in the Preamble of
this Agreement.
1.43. "Purchase Price" shall have the meaning ascribed to it in Section
2.2.
1.44. "Purchaser" shall have the meaning ascribed to it on the first page
of this Agreement.
1.45. "Purchaser Indemnified Parties" is defined in Section 7.1.
1.46. "Reserve" is defined in Section 2.3(a)
1.47. "Seller" or "Sellers" shall have the meaning ascribed to it on the
first page of this Agreement.
1.48. "Subsidiary" or "Subsidiaries" means, collectively or individually,
as the case may be, Newdeal France, Surfix, Newdeal Belgium and
Newdeal USA.
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1.49. "Tax" is defined in Section 4.10(c).
1.50. "Taxable" is defined in Section 4.10(c).
1.51. "Tax Authority" is defined in Section 4.10(c).
1.52. "Tax Returns" is defined in Section 4.10(a).
2. Purchase and Sale of the Company Shares.
2.1 Transaction.
Upon Closing, subject to the conditions set forth in this Agreement,
each Seller agrees to sell, transfer and deliver his Company Shares in the
amount he holds as set forth in Exhibit 4.5(a) attached hereto, to the
Purchaser, which agrees to purchase the Company Shares, according to the terms
and conditions of this Agreement.
The Company Shares shall be transferred free and clear of any Lien
and are freely transferable without any contractual, statutory or judicial
restriction.
The Purchaser shall not be obliged to complete the purchase of any
of the Company Shares unless the transfer of all of the Company Shares is
completed simultaneously.
As of the Closing Date, as defined hereafter, the Purchaser shall
have the possession, use and ownership of all the Company Shares and of all
rights now and hereafter attaching or accruing thereto, including rights
pertaining to dividends payable with respect to the Company Shares for all
periods after the fiscal year ended on December 31, 2003.
2.2 Purchase Price.
The total consideration for the Company Shares transferred upon
Closing and the covenants and agreements set forth herein shall be equal to
thirty eight million five hundred thousand Euro (EUR 38,500,000) (the
"Acquisition Price") plus the amount of the Post-Closing Adjustment
(collectively, the "Purchase Price").
2.3. Payment of the Purchase Price.
The Purchase Price shall be paid as follows:
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(a) On the Closing Date, the Purchaser shall pay to Sellers by
immediately available funds an amount equal to (i) the
Acquisition Price, less (ii) one million two hundred and fifty
thousand Euro (EUR 1,250,000) (the "Reserve"), plus (iii) the
Estimated Post Closing Adjustment (such payment, in the
aggregate, the "Closing Date Payment". Delivery of immediately
available funds constituting the Closing Date Payment shall
fully discharge the Purchaser's Closing Date Payment
obligation. Such funds may be paid by certified check or by
wire transfer to a single account designated by the Sellers.
The Purchaser shall inform the Sellers of the choice of
payment method no later than December 15, 2004.
(b) On the first anniversary of the Closing Date (the "Anniversary
Date"), the Purchaser shall pay to Sellers by immediately
available funds an amount equal to (i) the Reserve, less (ii)
the Estimated Post Closing Adjustment, plus (iii) the Post
Closing Adjustment as finally determined pursuant to the Final
Adjustment Statement defined in Section 2.5, less (iv) amounts
claimed by Purchaser pursuant to Section 7.3(b), less (v)
twenty-five percent (25%) of the Reserve for each Seller that
shall have resigned his employment with the Company prior to
the Anniversary Date (such payment, the "Anniversary
Payment"), provided, however, that in the event Purchaser
shall terminate the employment of any Seller without good
cause prior to the Anniversary Date, the Purchaser shall pay
the Anniversary Payment to Sellers in immediately available
funds within ten (10) business days of such termination.
2.4 Apportionment of the Purchase Price
The Purchase Price shall be apportioned among the Sellers as set
forth in Exhibit 5 attached hereto.
2.5 Post-Closing Adjustment.
2.5.1 Closing Balance Sheet and Adjustment Statement.
(a) Within ninety (90) days after the Closing Date, the Purchaser shall,
in cooperation with the CCC accounting firm, prepare and deliver to
Sellers: (i) a balance sheet of the Companies as of the Closing Date
prepared in the same manner as the Interim Balance Sheet (the
"Closing Balance Sheet"), (ii) a statement in the form attached
hereto as Exhibit 6, displaying the calculation of Closing Working
Capital made in all respects in the same manner as the calculation
of the Base Working Capital, and the calculation of the Post Closing
Adjustment (the "Adjustment Statement").
(b) Sellers shall have thirty (30) days following delivery to them of
the Closing Balance Sheet and the Adjustment Statement during which
to notify Purchaser of any dispute of any item contained in such
Closing
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Balance Sheet or the Adjustment Statement, which notice shall set
forth in reasonable detail the basis for such dispute. Purchaser
shall provide Sellers with reasonable access to its books and
records so that Sellers may examine the basis for the Closing
Balance Sheet and the Adjustment Statement. If Sellers fail to
notify Purchaser of any such dispute within such thirty (30) day
period or notify Purchaser that they are in agreement with the
Closing Balance Sheet and the Adjustment Statement, the Closing
Balance Sheet delivered to Sellers shall be deemed to be the "Final
Closing Balance Sheet" and the Adjustment Statement shall be deemed
the "Final Adjustment Statement", which shall each be deemed to have
been delivered to the Sellers on the later of the date of (i) the
notification of agreement by the Sellers, and (ii) the expiration of
the thirty(30)-day period referred to hereabove. In the event that
Sellers shall so notify Purchaser of a dispute, Purchaser and
Sellers shall cooperate in good faith to resolve such dispute as
promptly as possible.
2.5.2 Resolution of Disputes.
If Purchaser and Sellers are unable to resolve any dispute with
respect to any item contained in the Closing Balance Sheet or the Adjustment
Statement within sixty (60) days of the delivery of the notice of a dispute as
referred to in Section 2.5.1. hereabove, such dispute shall be resolved by the
Lyon office of BDO Gendrot (the "Independent Accounting Firm") acting as an
expert pursuant to Article 1592 of the Civil Code. The Independent Accounting
Firm shall make its determination as promptly as practicable and such
determination shall be final and binding on the Parties and shall not be subject
to court proceedings pursuant to Section 7.3. Any expenses relating to the
engagement of the Independent Accounting Firm shall be shared equally between
Purchaser, on the one hand, and Sellers collectively, on the other hand. The
Closing Balance Sheet, as modified by resolution of any disputes between
Purchaser and Sellers or by the Independent Accounting Firm, shall be the "Final
Closing Balance Sheet," and the Adjustment Statement, as modified by resolution
of any disputes between Purchaser and Sellers or by the Independent Accounting
Firm, shall be the "Final Adjustment Statement."
3. Closing.
3.1 Conditions Precedent to Closing; Closing.
(a) The closing (the "Closing") shall take place at the offices of Xxxx
& Associes, Paris, France, on January 3, 2005, or at such other date
and place as the Purchaser and the Sellers may agree in writing (the
"Closing Date") All transactions and actions, including, without
limitation, the deliveries by the Sellers as provided under Section
3.2, to be taken at the Closing shall be deemed to take place
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simultaneously and effective on the Closing Date; provided that no
transaction and deliveries of any document shall be deemed complete
until all transactions and deliveries of documents are complete. In
the event that the Closing shall not have taken place by midnight,
Paris time, on the Closing Date, this Agreement shall terminate
unless the parties mutually agree otherwise.
(b) Closing Conditions.
In addition to the Closing deliveries by the Sellers as provided
under Section 3.2, and the covenants of the Parties as set out
herein, the Parties' obligation to consumate this transaction shall
be subject to (i) all of the representations and warranties provided
for hereunder being true and correct on the Closing Date, (ii) the
absence of any Material Adverse Effect in the Business arising on or
after the date hereof, and (iii) the absence of the institution or
threat of any action by any Governmental Authority or other person
or entity which challenges, seeks damages in connection with, or
seeks to restrain, any of the transactions contemplated by this
Agreement. It is specified that neither (a) a drop in United States
revenues, even if substantial or (b) a drop in the value of the
United States dollar against the euro will not be deemed to
constitute a Material Adverse Effect.
3.2 Documents To Be Delivered to the Purchaser by the Sellers.
At the Closing, the Sellers will deliver to the Purchaser or will
cause to be delivered to the Purchaser:
(a) The share transfer forms (ordres de mouvements de titres) in respect
of the seventy five thousand (75,000) Company Shares (and all voting
and other rights attached thereto);
(b) Stock transfer ledgers and shareholder accounts for all of the
issued and outstanding shares of Newdeal France and Surfix;
(c) Written evidence of the ownership by Newdeal France of all of the
issued and outstanding shares of Newdeal Belgium and Newdeal USA;
(d) A certificate, in form and substance reasonably acceptable to the
Purchaser, executed by the Sellers, dated the Closing Date, and
certifying that
(i) all representations and warranties in this Agreement are
true and correct as of the Closing Date,
(ii) they have not breached any covenant in this Agreement,
and
(iii) attached thereto is a true and complete copy of the
Articles of Incorporation (statuts) and of the
registration certificate (extrait K-bis) of the Company,
as in effect as of the Closing Date;
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(e) Unconditional resignation effective as of the Closing Date of all
the directors (administrateurs) and other officers (mandataires
sociaux) of the Companies, with a written acknowledgment from each
that he/she has no claim whatsoever against the Companies whether in
respect of compensation or damages or the payment of any other sum
or sums for loss of office or otherwise;
(f) Proof of the termination of all powers of attorney and delegation of
powers (delegations de pouvoir and delegations de signature) granted
by the Companies;
(g) All of the Companies' share registry and records of directors and
shareholders' meetings all duly completed and up to date;
(h) Consents of all third parties which are required on the part of the
Companies or the Sellers as a result of the consummation of the
transactions contemplated by this Agreement;
(i) A certified copy of the resolutions of the Board of Directors of the
Company approving the Purchaser as new shareholder of the Company;
(j) Resignation letters from such statutory auditors acting for any of
the Companies who have resigned if any;
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(k) A signed original of a guarantee (cautionnement) granted to the
benefit of the Purchaser and the Companies by a bank of
international rank to secure the indemnification obligations of each
of the Sellers as set out in Section 7 hereof, substantially in the
form as set out in Schedule 3.2(k) hereto; and
(l) Such opinions of legal counsel to the Sellers or any of the
Companies as the Purchaser may request;
(m) A certified copy of the minutes of the Company Board of Directors'
meeting convening a shareholders' meeting on the Closing Date for
the purpose of appointing the successors of the members of the Board
of Directors and the statutory auditors;
(n) Certified copies of the minutes of the respective corporate bodies'
meetings of each of the Subsidiaries convening a shareholders'
meeting on the Closing Date for the purpose of appointing the
successors of the respective corporate officers of the Subsidiaries
and the statutory auditors;
(o) Employment Agreements between one of the Companies, on the one hand,
and each of Fourcault, Knevels and Giet which will provide for their
current salary and benefits and other customary terms, it being
understood such contracts will not provide for any contractual
severance payments or notice period longer than provided by the
applicable collective bargaining agreement;
(p) Complete copies of all employment agreements with all employees of
the Companies;
(q) Any form or document which may be required by any Tax Authority to
relieve Purchaser of any obligation to withhold any portion of the
Purchase Price payable to Sellers pursuant to this Agreement
including IRS form W8 BEN; and
(r) The releases of the pledges on the shares of Surfix and Newdeal
France; provided that complete compliance with this Section 3.2 by
the Sellers, as well as the truthfulness and accuracy of the
certificate delivered pursuant to Section 3.2(d), shall be
conditions to the Purchaser's obligations under Sections 2 and 3.3.
3.3. Documents to be Delivered by the Purchaser.
At the Closing, the Purchaser will deliver to the Sellers or cause
to be delivered to the Sellers, the following:
(a) Against receipt of the Sellers' share transfer forms in accordance
with Sections 3.2(a) hereof, certified checks totalling in the
aggregate the
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amount of the Closing Date Payment or written confirmation of
receipt of the funds constituting the Acquisition Price by the
Sellers' bank;
(b) A copy of the shareholder meeting minutes of the Purchaser
authorizing the purchase of the Company Shares;
(c) Documents supporting the fifty thousand (50,000) stock option grants
for purchase of shares of Integra Life Sciences Holdings
Corporation, which documents shall have the same terms and
conditions as stock options granted to Purchaser's employees having
the rank of Vice President (which includes a strike price of fair
market value when granted, vesting over four years (25% at the end
of the first year, and then ratably per month for the following
three years) and a term of expiration of six years. Such terms and
conditions may be modified, and restrictions added, in order to
optimize tax and social-charge treatment under applicable French and
Belgian law;
(d) the Employment Agreements referred to in Section 3.2(o); and
(e) A closing certificate duly executed by the Purchaser.
4. Representations and Warranties by the Sellers.
The Sellers represent and warrant to the Purchaser that on the date
hereof and as of the Closing Date:
4.1 Organization.
The Company is a corporation duly incorporated and validly existing
under the laws of France. Except for the Subsidiaries as set forth in Schedule
4.1, the Company has never had and presently has no equity interests or
investments in, and does not exercise any control over, whether direct or
indirect, in law or in fact, any Person (as defined below), and has not been and
is not a member of any joint venture or partnership. The Company has not agreed
to acquire any such interest or to become a member of any joint venture or
partnership. The Company does not serve as director in law or in fact in any
Person. The verb "control", as used in this Agreement, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of any such company or entity, and the
term "Person" as used in this Agreement shall mean an individual, trust, estate,
partnership, firm, business, corporation, limited or unlimited liability company
or other juridical entity, enterprise or association, existing in law or in
fact. Each of the Subsidiaries is a corporation duly incorporated and validly
existing under the laws of the jurisdiction of its incorporation. Each of the
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Companies has all requisite corporate authority to own or lease and to operate
its properties and to carry on its business as now being conducted. Each of the
Companies is authorized to do business in each jurisdiction where it is required
to be authorized as a result of the conduct of its business.
4.2 Authority.
Each of the Sellers has the right, power and authority to execute
and deliver this Agreement and the other agreements and documents contemplated
by this Agreement and to carry its obligations hereunder and thereunder. Except
as set forth in Schedule 4.2, the consummation of the transactions contemplated
thereby have been duly authorized by the Board of Directors of the Company and
no other proceeding, authorization or approval on the part of any of the Sellers
or any of the Companies is necessary to authorize the execution and delivery of
this Agreement or the performance by each of the Sellers or each of the
Companies of any of the transactions contemplated hereby or thereby. This
Agreement has been duly executed by each of the Sellers, and any documents to
which each of the Companies is a party have been duly executed by the respective
Companies, and when executed and delivered by all required parties hereto and
thereto, will be legal, valid, and binding obligations of each of the Sellers
and each of the Companies enforceable against each of the Sellers and each of
the Companies in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, moratorium, fraudulent conveyance and other similar laws
of general application affecting the rights of creditors.
4.3 Approvals.
No consent, approval, order, or authorization of, or notification,
registration, declaration, or filing with, any French or Belgian Governmental
Authority, or to the knowledge of the Sellers, any other Governmental Authority.
No consent of any third party is required in connection with the execution and
delivery of this Agreement by any of the Sellers or any of the Companies or the
consummation of the transactions contemplated hereby.
4.4 Non-Contravention.
The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby do not and will not:
(a) violate any provision of the by-laws the certificate of
incorporation or any other governing or constitutional documents of
any of the Companies;
(b) except as set forth in Schedule 4.4(b), violate any provision of, or
result in the breach or the acceleration of, or entitle any party to
terminate or accelerate (whether after the giving of notice or lapse
of time or both), any Contract to which any of the Companies is a
party or by which the Business or any of the assets necessary to
conduct the Business, to manufacture the Products or to cause the
Products to be manufactured by a party other than any of the Sellers
or their affiliates, is bound;
Page 15
(c) violate any Lien or result in the imposition of any Lien upon any
property of any of the Companies or Sellers; or
(d) violate or conflict with any other material restriction or any law,
ordinance, rule, order, arbitration award, judgment, or decree to
which any of the Companies or any of the Sellers, or any property of
them, is subject.
4.5. Capital Stock; Title to Shares; Subsidiaries.
(a) The Company's authorized share capital consists of seventy five
thousand (75,000) shares, and the only issued shares of the Company
are the Company Shares which are owned by the Sellers in the amounts
set forth opposite their respective names in Schedule 4.5 (a)
hereto. The Company Shares are duly authorized, validly issued, and
fully paid. The Sellers own the Company Shares free and clear of all
Liens. Each of the Sellers has the all the rights, powers and
authority to sell all of its shares as provided herein, and upon
such sale, the Purchaser will receive good and valid title to all of
the Company Shares, free and clear of all Liens. The Company share
ledger registry (registre des mouvements de titres) will be in
proper form for transfer when delivered to the Purchaser at the
Closing.
(b) Schedule 4.5 (b) lists each of the Subsidiaries' respective (i)
jurisdiction and date of incorporation, (ii) share capital, (iii)
number of shares issued as of the date hereof, and (iv)
shareholders, directors and officers (mandataires sociaux). The
information indicated in Schedule 4.5 (b) is true and accurate. All
shares of all Companies are duly authorized, validly issued, and
fully paid and free and clear of all Liens except as set forth on
Schedule 4.5(b). Each of the Subsidiaries' share ledger registries
(registres des mouvements de titres) or local equivalent will be in
proper form when delivered to the Purchaser at the Closing.
(c) There are no outstanding subscriptions, options, conversion rights,
warrants, or other agreements or commitments of any nature
whatsoever (either firm or conditional) obligating any of the
Companies to issue, deliver, sell, or cause to be issued, delivered,
or sold, any additional shares of capital stock of any of the
Companies, or obligating any of the Companies to grant, extend, or
enter into any such agreement or commitment. There are no rights of
first refusal, pre-emptive rights, or other similar agreements
obligating any of the Companies or any of the Sellers to offer any
shares of its capital stock to any person and none of the Companies'
shares (and in particular the Company Shares) were issued in
violation of any pre-emptive or similar rights. There are no
dividends due to be paid or in arrears with respect to any of the
Companies' shares, except as set forth in the last paragraph of
Schedule 4.9(b).
Page 16
4.6. Financial Statements.
Attached hereto as Schedule 4.6 are true, complete and correct
copies of the Financial Statements. All of the Financial Statements are true,
correct and complete in all material respects, are in accordance with the books
and records of each of the Companies, have been prepared in accordance with
Local GAAP, consistently applied throughout the periods indicated, and present
fairly the financial position of the Companies at the dates indicated and the
results of operations of the Companies for the periods indicated.
4.7. Undisclosed Liabilities.
None of the Companies nor any of the Sellers, acting on behalf of
the Business or any of the Companies, has incurred any liability or obligation
(absolute, accrued, contingent, or otherwise) of any nature (other than
contractual liabilities and contractual obligations incurred in the ordinary
course of business) that has not been properly reflected or reserved against in
the Financial Statements or described on Schedule 4.7.
4.8. Business ("Fonds de Commerce") - Business Difficulties.
(a) The respective businesses ("fonds de commerce") of each of the
Companies and the Business have been operated in a normal manner, in
accordance with applicable laws and regulations, so as to maintain
its activities and safeguard its existence. Except to the extent
specifically set forth in Schedule 4.8,each of the Companies has
full ownership of its respective business, which is not the subject
of any Liens, pledges or third party rights, nor of any claims or
actions of any nature whatsoever. Each of the Companies owns or has
the right to use all tangible and intangible assets that are
necessary to the conduct of its respective business as currently
conducted or as proposed to be conducted.
(b) None of the Companies is currently nor has been in the past, the
subject of any proceeding with a view to the prevention or
resolution of business difficulties (or any similar actions), or of
a judgement of dissolution, and there do not exist any reasons
justifying such a procedure or judgement concerning any of the
Companies. None of the Companies is insolvent, or undergoing a
period of difficulties ("periode suspecte"), or has declared, or is
in a situation to declare, any discontinuance of payments
("cessation de paiements"), as these terms are used in French
bankruptcy law.
Page 17
4.9 Conduct in the Ordinary Course; Absence of Certain Changes.
Since December 31, 2003, the respective businesses of each of the
Companies has been conducted in the ordinary course thereof and each of the
Sellers and of the Companies have used reasonable commercial efforts to preserve
intact the organization of the businesses and the goodwill of the customers,
suppliers and others having a business relation with each of the Companies and
their respective businesses. Since December 31, 2003, there has been no Material
Adverse Effect, and none of the Companies has, and none of the Sellers, with
respect to the Companies and their respective businesses, has:
(a) except as set forth in Schedule 4.9(a), issued or sold any shares,
notes, bonds or other securities, or any option to purchase the
same, or entered into any agreement with respect thereto;
(b) except as set forth in Schedule 4.9(a) and (b), declared, set aside,
or made any dividend or other distribution on its share capital or
redeemed, purchased, or acquired any shares thereof, or entered into
any agreement in respect of the foregoing;
(c) except as set forth in Schedule 4.9 (c), amended its by-laws, its
certificate of incorporation or any other governing provisions;
(d) except as set forth in Schedule 4.9(a) and (b),other than in the
ordinary course of business (i) purchased, sold, assigned, licensed,
leased or transferred any tangible or intangible assets or property
(including but not limited to securities, cash and cash
equivalents); (ii) mortgaged, pledged, granted, or suffered to exist
any Lien on any tangible or intangible assets or properties, except
for Liens for Taxes not yet due; or (iii) waived any rights of value
or canceled any debts or claims;
(e) incurred any obligation or liability (absolute or contingent),
except current liabilities and obligations incurred in the ordinary
course of business, or paid any liability or obligation (absolute or
contingent) other than current liabilities and obligations incurred
in the ordinary course of business, consistent with past practice;
(f) except as set forth on Schedule 4.9(f), increased, or become
obligated to increase, the compensation or other benefits payable to
any director, manager, officer, employee, consultant or agent of any
of the Companies or any relative of any such person, or paid any
bonus, granted any severance or termination pay, or entered into any
employment agreement or other agreement (written or oral) with any
such person or relative or hired anyone;
(g) incurred any damage, destruction, or similar loss, whether or not
covered by insurance, affecting the business or properties of any of
the Companies which will not, in the aggregate, exceed one hundred
thousand(100,000) Euros;
Page 18
(h) entered into any transaction other than in the ordinary course of
business and consistent with past practice including, without
limitation, entering into a Contract with a customer on terms which
reflect a discount of more than five (5%) percent of the customary
rates for the product or service covered by such Contract;
(i) made or instituted any unusual or new methods of manufacture,
purchase, sale, distribution, shipment or delivery, lease,
management, accounting or operation, or shipped or delivered any
quantity of Products in excess of normal shipment or delivery
levels;
(j) except as set forth in Schedule 4.9 (j), made any capital
expenditure or commitment for any capital expenditure in excess of
twenty thousand (20,000) Euros in the aggregate;
(k) except as set forth in Schedule 4.9 (k), commenced or settled any
litigation that, if adversely determined, could restrict the
operations of any of the Companies or would have a Material Adverse
Effect;
(l) suffered any strike or other labor trouble affecting its business,
operations, or prospects;
(m) except as set forth in Schedule 4.9(m), made or permitted any
material amendment or termination of any material Contract to which
it is a party other than in the ordinary course of business
consistent with past practice;
(n) except as set forth in Schedule 4.9(n), made any change in its
accounting methods or practices;
(o) abandoned or disposed of any Intellectual Property Rights, other
than in the ordinary course of business consistent with past
practice;
(p) except as set forth in Schedule 4.9(p), suffered any loss of
employees or customers that affects the Companies' respective
businesses, operations or prospects; and
(q) except as set forth on Schedule 4.9(q), incurred, accrued or paid
any fees to professional advisors, including but not limited to
attorneys, accountants, banks, finders or brokers, in connection
with the transactions contemplated by this Agreement or any sale of
any of the Companies' assets.
Page 19
4.10. Tax Returns, Taxes.
(a) All Tax returns, statements, reports and forms (including without
limitation estimated Tax returns and reports and information returns
and reports) required to be filed with any Tax Authority with
respect to any Taxable period ending on or before the Closing, by or
on behalf of any of the Companies (collectively, the "Tax Returns"),
have been or will be properly completed and filed when due
(including any extensions of such due date on or before the Closing
date), and all amounts shown to be due thereon on or before the
Closing have been or will be paid on or before such date. The
Financial Statements fully accrue all actual and contingent
liabilities for all unpaid Taxes with respect to all periods (or
portions of such periods) through June 30,2004, and none of the
Companies has or will incur any Tax liability in excess of the
amount reflected on the Financial Statements (whether or not
reflected as payable on any Tax Return that has been filed) with
respect to such periods (or portions of such periods). All
information set forth in the notes to the Financial Statements
relating to Tax matters is true, complete and accurate in all
respects. None of the Companies has or, to the Sellers' knowledge,
will incur any Tax liability for periods (or portions of periods)
after June 30, 2004 through the Closing Date other than in the
ordinary course of business. Each of the Companies has withheld and
paid to the applicable financial institution or Tax Authority all
amounts required to be withheld except as set forth on Schedule
4.10(a). None of the Companies has been granted any extension or
waiver of the limitation period applicable to any Tax Returns.
(b) Except as set forth on Schedule 4.10(b), there is no claim, audit,
action, suit, proceeding, or investigation now pending or to the
Sellers' knowledge, threatened against or with respect to any of the
Companies in respect of any Tax or assessment. No notice of
deficiency or similar document of any Tax Authority has been
received by the any of the Companies, and there are no liabilities
for Taxes (including liabilities for interest, additions to Tax and
penalties thereon and related expenses) with respect to the issues
that have been raised (and are currently pending) by any Tax
Authority that could, if determined adversely to any of the
Companies, adversely affect the liability of any of the Companies
for Taxes.
(c) The Sellers have previously provided or made available to the
Purchaser true and correct copies of all Tax Returns filed through
the date of this Agreement. Each of the Sellers will make available
to the Purchaser all Tax Returns filed after the date of this
Agreement, all work papers with respect to Tax Returns, all Tax
opinions and memoranda with respect to Taxes owed or potentially
owed by any of the Companies, and all other Tax data and documents
reasonably requested by the Purchaser. For purposes of this
Agreement, the following terms have the following meanings: "Tax"
(and, with correlative meaning, "Taxes" and "Taxable") means any and
all taxes including, without limitation, (i) any net income,
alternative or add-on minimum tax, gross income, gross
Page 20
receipts, sales, use, ad valorem, transfer, franchise, profits,
business (taxe professionnelle) value added, net worth, license,
withholding, payroll, employment, excise, severance, stamp,
occupation, premium, property, environmental or windfall profit tax,
custom, duty or other tax, social contributions, including without
limitation social security contributions, Contribution Sociale
Generalisee ("CSG"), Contribution Au Remboursement de la Dette
Sociale ("CRDS"), contributions paid to unemployment insurance
agencies ("ASSEDIC"), contributions to voluntary additional or
supplementary retirements plans, contributions to voluntary medical,
life and disability plans, and any other taxes, withholding or
contributions assessed in whole or in part on wages or salaries,
governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest or any penalty, addition to
tax or additional amount imposed by any governmental entity
responsible for the imposition of any such tax (domestic or foreign)
(a "Tax Authority"), (ii) any liability for the payment of any
amounts of the type described in (i) as a result of being a member
of an affiliated, consolidated, combined or unitary group for any
Taxable period or as the result of being a transferee or successor
and (iii) any liability for the payment of any amounts of the type
described in (i) or (ii) as a result of any express or implied
obligation to indemnify any other person.
(d) None of the Companies is and has ever been a member of a tax
consolidation group (integration fiscale), and no relief from or
against or in respect of any taxes has been claimed and/or given to
any of the Companies which could or might be effectively withdrawn,
postponed, restricted, claimed back or otherwise lost. Except as set
forth in Schedule 4.10 (d), none of the Companies has entered into
any Contract giving rise to or has otherwise incurred any costs or
payments which are not or may not be Tax deductible, or which
deduction may be challenged in whole or part by the Tax Authorities.
(e) The payment of the Acquisition Price is not subject to any Tax
withholding requirements.
4.11. Title to and Condition of the Assets of the Companies.
(a) (1) Each of the Companies owns or leases all of the tangible assets
and properties used or held by it in connection with the Business as
presently being conducted, and all of such owned assets and
properties are reflected in the Financial Statements.
(2) Each of the Companies has good title to all assets owned by it,
free and clear of all Liens except as set forth on Schedule 4.8,
(3) Each of the Companies possesses all rights of an ordinary lessee
in connection with all assets leased by it, free and clear of all
Liens, and all lease agreements to which each of the Companies is a
party are valid, and in full force and effect, and
Page 21
(4) All of the tangible personal property owned or leased by each of
the Companies is in good operating condition and repair, subject
only to the ordinary wear and tear. No property or asset owned by
any of the Companies is in violation of any applicable ordinance,
regulation, or building, zoning, environmental or other law in
respect thereof, and to the Sellers' knowledge, no property or asset
leased by any of the Companies is in violation of any applicable
ordinance, regulation, or building, zoning, environmental or other
law in respect thereof.
(b) All accounts receivable of each of the Companies represent sales
actually made or services actually performed in the ordinary and
usual course of each of the Companies' business consistent with past
practice. Except as set forth in Schedule 4.11 (b), each account
receivable of each of the Companies is valid and collectible, and
will be collected, in full net of any respective reserves shown on
the Financial Statements (which reserves are adequate and calculated
consistent with past practice) within one hundred eighty (180) days
after the day on which it first became due and payable. There is no
contest, claim or right of set-off contained in any agreement
(written or otherwise) asserted by any account debtor relating to
the amount or validity of any account receivable of any of the
Companies or any note evidencing the same. The Sellers shall have
the right to repurchase from the Companies, any receivable not
collected within one hundred eighty (180) days after the day on
which it first became due and payable for a price equal to the net
book value of such receivables on the Closing Date.
(c) Each of the Companies has full ownership of all of the receivables
appearing in its books and holds the originals of all such
receivables and the documents related thereto. Such receivables are
legally valid and binding against the relevant debtor for the full
amount of such receivables and there is no obstacle to their being
recognized as such by a court.
(d) None of the Companies has pledged or factored any of its
receivables, and no third party holds any interest in these
receivables.
(e) the inventory reflected on the Financial Statements and those
inventories owned by each of the Companies are in good,
merchantable, usable and working condition. Except as set forth in
Schedule 4.11 (e), there are no obsolete or discontinued items
reflected in the Financial Statements and each of the Companies has
the proper amount of inventories to conduct its business consistent
with past practice.
Page 22
4.12. Real Estate.
Except as set forth on Schedule 4.12, none of the Companies owns any
real estate. Schedule 4.12 hereto sets forth list of all real estate leased by
each of the Companies for which all leases have been provided to the Purchaser.
None of the Companies has received any notice (oral or written) from any
Governmental Authority which restricts the use of any of the real estate
described in Schedule 4.12 hereto. None of the Companies has received any notice
(oral or written) from any of the Persons whose real estate it uses in
connection with its activities. There is no Lien with respect to any of the real
estate described in Schedule 4.12 hereto.
4.13. Material Contracts.
(a) All material Contracts to which any of the Companies is a party is
listed in Schedule 4.13(a), and true and complete copies thereof
(with any amendments, sideletters, or waivers) have been delivered
to the Purchaser. Schedule 4.13(a) shall be organized in subsections
to match those set forth in this Section 4.1.3; provided, certain
Contracts entered into in the ordinary course with suppliers,
consistent with past practice that do not fall within any of the
specific subsections of Section 4.13(a), are not included on
Schedule 4.13(a). None of the Companies and/or the Business is (are)
a party to or subject to:
(i) Except as set forth in Schedule 4.13(a)(i), any union
Contract or any employment or consulting Contract with any
director, officer, agent, consultant or affiliate, including
any employment Contract or offer letter providing for any
payments to be made in connection with the consummation of the
transactions contemplated hereby;
Page 23
(ii) Except as set forth in Schedule 4.13(a)(ii), any OEM
Contract, end-user agreement, source code license, volume
purchase Contract or other similar Contract currently in
effect, or joint venture Contract or arrangement or any other
Contract which has involved or is expected to involve a
sharing of profits with other persons or provides or may
provide for payments of more than twenty thousand (20,000)
Euro per annum;
(iii) Except as set forth in Schedule 4.13(a)(iii), any
indebtedness or any instrument evidencing or related in any
way to indebtedness incurred in the acquisition of companies
or other entities;
(iv) Except as set forth in Schedule 4.13(a)(iv), any Contract
for the licensing of intellectual property, either as licensee
or licensor, other than standard license agreements entered
into in the ordinary course of business relating to
"off-the-shelf" software for the Companies' internal business
purposes;
(v) Except as set forth in Schedule 4.13(a)(v), any Contract
containing covenants purporting to limit the freedom of any of
the Companies to compete in any line of business in any
geographic area;
(vi) Except as set forth in Schedule 4.13(a)(vi), any Contract
restricting others from freely engaging in business in
competition with any of the Companies anywhere in the world ;
(vii) Except as set forth in Schedule 4.13(a)(vii), any
Contract relating to capital expenditures in excess of twenty
thousand (20,000) Euro
(viii) Except as set forth in Schedule 4.13(a)(viii), any
Contract relating to the disposition or acquisition by any of
the Companies of any stock, assets in excess of twenty
thousand (20,000) Euro or, subject to Section 4.22(e), any of
the Companies' Intellectual Property Rights;
(ix) Except as set forth in Schedule 4.13 (a)(ix), any
Contract providing for minimum payment or resale obligations,
ongoing support or research and development obligations, or
warranty obligations on the part of any of the Companies,
except arrangements entered into in the ordinary course of
business;
(x) Except as set forth in Schedule 4.4(b)(2), any Contract
with any Governmental Authority;
(xi) Except as set forth in Schedule 4.13(a)(xi), any Contract
requiring a commitment of any of the Companies' resources or
personnel to market, distribute or license third-party
products or technology, whether on a best-efforts basis or
otherwise;
Page 24
(xii) Except as set forth in Schedule 4.13(a)(xii), any other
Contract which, if breached, would have a Material Adverse
Effect on any of the Companies or the Business;
(xiii) Except as set forth in Schedule 4.13(a)(xiii), any
Contract with customers having a remaining term of no more
than six (6) months;
(xiv) Except as set forth in Schedule 4.13(a)(xiv), any
manufacturing Contract;
(xv) Except as set forth in Schedule 4.13(a)(xv), any
Distribution Agreement;
(xvi) Except as set forth in Schedule 4.13(a)(xvi), any
consignment agreement;
(xvii) Except as set forth in Schedule 4.13(a)(xvii), any
Contract with any group purchasing organization, hospital,
distributor or surgeon;
(xviii) Any Contract entered into other than in the ordinary
course;
(xix) Any Contract with any Person or Governmental Authority
in or representing any of the following countries: Cuba, Iran,
North Korea, Burma (Myanmar), Sudan, Liberia, Syria, and
Zimbabwe;
(xx) Except as set forth in Schedule 4.13(a)(xx), any
agreement with any of the Sellers or any Person controlled by
or controlling or under common control with any of the
Sellers; or
(xxi) Except as set forth in Schedule 4.13(a)(xxi), any
Contract with any supplier with respect to any of the
Companies or the Business.
(b) Except as set forth in Schedule 4.13(b), the Contracts to which any
of the Companies is a party are each valid and in full force and
effect, and all parties to the Contracts have performed all
obligations required to be performed by them to date, and none of
the Companies nor, any other party thereto is in default thereunder.
Notwithstanding the foregoing, (i) the Companies anticipate
terminating the agreement for distribution in the United States and
Canada, and (ii) the Companies have taken no action to extend the
term of the United States distribution agreement beyond February 15,
2005.
(c) Except as set forth in Schedule 4.13(c), none of the Companies is a
party to any Contract that would reasonably be expected to have a
Material Adverse Effect.
Page 25
(d) To the Sellers' knowledge, all of the Companies' current Contracts
or arrangements with the Companies' customers and clients are in
full compliance with any applicable laws and regulations and are
valid and fully enforceable in all their terms against the
Companies' customers and clients, including but not limited to,
terms relating to the limitation of the Companies' liability, or
consumer protection, health and medical, and competition laws in the
jurisdictions in which each of the Companies does business or its
products are sold or used. None of the Companies' expired or
terminated Contracts with customers shall result in any liability of
any of the Companies to customers and clients or former customers
and clients resulting from the non-conformity of such Contracts with
applicable laws regarding consumer protection and competition laws.
Page 26
(e) Except as set forth in Schedule 4.13(e), none of the Companies is a
party to any commercial agency agreements or relationships ("contrat
d'agence commerciale') within the meaning of French law
n(degree)91-593, dated June 25, 1991, or to any agreement or
relationship which could be qualified as such.
4.14. Litigation.
(a) There are no actions, suits, proceedings, investigations, or
inquiries pending or, to the best of the Sellers' knowledge,
threatened, against or affecting any of the Companies at law or in
equity in any court or before any other Governmental Authority of
France, Belgium, European Union, the United States of America or any
subdivision thereof or the other government of any other country or
territory, including, but not limited to, any action that reasonably
could be expected to impair any of the Sellers' right or ability to
execute and deliver this Agreement or consummate the transactions
contemplated hereby or thereby.
(b) There are no claims, of whatever nature, brought against any of the
Companies (or any party that might have legal recourse against any
of the Companies) by any of the Companies' customers and clients,
including but not limited to as regards the Companies' liability for
the performance of services or in connection with Products or any of
the Companies services, and to the best of the Sellers' knowledge,
after due inquiry, there are no claims, of whatever nature,
threatened to be brought against any of the Companies, or affecting
it, by any of the Companies' respective customers and clients
including but not limited to as regards any of the Companies'
liability for the performance of services or in connection with
Products or any of the Companies services. Except as set forth on
Schedule 4.14(b), there are no claims against Sellers or, any of the
Companies for termination or breach of a Distribution Agreement.
(c) None of the Companies is in default in respect of any judgment,
order, writ, injunction, or decree of any court or any Governmental
Authority anywhere in the world.
4.15. Certain Relationships.
Except as set forth in Schedule 4.15, no Seller or any of the
Companies has received any written notice that any customer or distributor of,
or supplier, manufacturer or licensor to, or group purchasing organization or
hospital contracting with any of the Companies has taken any action or
threatened to take any action which will have or reasonably could be expected to
have a Material Adverse Effect.
Page 27
4.16. Employee Matters.
(a) Schedule 4.16(a) contains a true, correct and complete list of the
name, title, date of hire and current monthly compensation, base
salary or hourly remuneration rate of each person employed by each
of the Companies on the Closing Date (including persons employed as
trainees) and any independent contractors, consultants or agents
engaged by each of the Companies, together with a statement of the
full amount and nature of any other remuneration, whether in cash or
kind, paid to each such person since July 1, 2004 other than as
relates to use of company cars (see Schedule 4.7) as well as any
bonuses paid to them in 2003 or 2004 (except for bonuses based on
qualitative or quantitative performance). All bonuses in respect of
2004 shall either be paid prior to the Closing or accrued on the
Closing Balance Sheet.
(b) The Companies:
(i) are in compliance with all applicable laws and collective
bargaining agreements regarding employment and employment
practices (including, without limitation, the laws requiring
persons to have work permits), terms and condition of
employment and wages and hours (including but not limited to
minimal wages and overtime regulations), discrimination in
employment, election of employee representatives, information
with employee representatives, calculation and accruals of
vacations and of other accruals, wages and hours, occupational
safety, health and employment practices; and
(ii) have not engaged in any unfair labor practice. Except as
set forth on Schedule 4.16(b)(ii) and except as accrued for in
the Financial Statements, none of the Companies is liable for
any unpaid wages, vacation pay, bonuses, or commissions, or
for any material Tax, penalty, assessment or forfeiture for
failure to comply with any employer/employee matter.
(c) Except as set forth in Schedule 4.16(b)(ii) each of the Companies
has verified that all individuals providing services to it have
properly registered with the applicable authorities as independent
contractors. None of the Companies has liabilities as to any Taxes
with respect to such independent contractors.
(d) Except to the extent specifically set forth on Schedule 4.16(d),
none of the Companies has made any commitment in connection with
retirement or health insurance schemes, insofar as the staff
concerned are entitled to receive advantages in addition to those
provided for by law or the applicable collective bargaining
agreements as a result of such commitments.
(e) None of the Companies has any remaining liabilities or obligations,
including, without limitation, obligations of compensation for loss
of employment, vis-a-vis former employees or corporate officers.
Page 28
(f) None of the Companies is the subject of, or has been threatened with
any particular proceedings by the Labor Inspectorate ("Inspection du
Travail") or any similar agency outside France for failure to comply
with labor legislation.
(g) None of the Sellers nor any of the Companies has undertaken to grant
any benefits, compensation or other payments of any kind to any
employees or corporate officers of any of the Companies as a result
of the completion of the sale of the Company Shares to the
Purchaser; nor has any of the Sellers entered into a Contract with
any employee or officer of any of the Companies relating to any sale
of the Company Shares.
(h) None of the current senior executives or management staff of any of
the Companies has resigned, or has made known his or her intention
to resign.
(i) No unfair labor practice complaint or other complaint, litigation or
claim against or otherwise involving any of the Companies relating
to employment or labor is pending in any court or before any
Governmental Authority and, to the best knowledge of the Sellers,
there is no basis for such a complaint, litigation or claim.
(j) Except as listed on Schedule 4.16,
(i) except as set forth in Schedule 4.16(j)(i) and in Schedule
4.16(d) , none of the Companies is or has been a party to any
collective bargaining agreement or has not established,
maintained or contributed to any employee pension plan, and
none of the Sellers, with respect to the Business, is or has
been a party to any collective bargaining agreement or has not
established, maintained or contributed to any employee pension
plan;
(ii) except as set forth in Schedule 4.16(j)(ii), there is no
labor strike, dispute, slowdown or stoppage actually pending
or threatened against or involving any of the Companies or
affecting the Business;
(iii) except as set forth in Schedule 4.16(j)(iii), no factory
council, labor union or representation question exists
respecting the employees of any of the Companies or employees
of any of the Sellers who work on matters involving, or
related to, the Business;
(iv) no grievance question exists which might have a Material
Adverse Effect; and
(v) except as set forth in Schedule 4.16(j)(v) none of the
arrangements in effect prior to the Closing Date regarding the
provision of services by any of the directors, managers or
officers of any of the Companies contravened any applicable
law.
Page 29
(k) none of the Companies has any obligation to pay salary or benefits,
or to otherwise treat as an employee, any person other than those
listed on Schedule 4.16(a).
4.17. Insurance.
Each of the Companies maintains adequate insurance against risks for
the Business. All of the Companies' insurance policies covering such risks are
listed on Schedule 4.17 hereto, such policies are in full force and effect, all
premiums due thereon have been paid, and each of the Companies has complied in
all respects with the provisions of such policies. Schedule 4.17 includes a
description of all claims experience of each of the Companies during the past
three years under all of the insurance policies listed on Schedule 4.17,
including but not limited to settled and outstanding claims under all such
policies in respect of general liability and workers' compensation claims.
4.18 Product warranty and product liability claims.
No product manufactured, sold, distributed or delivered by or on
behalf of any of the Companies is subject to any warranty, guaranty, right of
return or other indemnity other than the respective Company's applicable
standard terms and conditions of sale, which are consistent with customary
industry practice. All product liability insurance listed in Schedule 4.17 is on
a claims-made basis. With respect to liabilities related to warranty claims,
each of the Companies has established an adequate reserve therefor in conformity
with Local GAAP and such Company's past custom and practice. None of the
Companies has, or to the Sellers' knowledge will have, any liability for
warranty claims in excess of the reserve so established with respect to any
Products sold prior to the Closing Date.
4.19 Inventory.
All Inventory reflected on the Financial Statements and all other
inventory acquired by any of the Companies since December 31, 2001 was acquired
in the ordinary course of business and in a manner consistent with each of the
Companies' regular inventory practices. Except for Demonstration Inventory, all
such Inventory is in good and saleable condition. Except as set forth on
Schedule 4.19 and except for Demonstration Inventory, none of the Companies'
Inventory is held by any Person on consignment or is located outside of any of
the Companies' facilities. With respect to all inventory on consignment,
Schedule 4.19 sets forth (i) for Newdeal France, as of October 29, 2004, the
amount of inventory on consignment broken down by French region, (ii) for
Newdeal Belgium, as of October 29, 2004, the total amount of inventory on
consignment (at Newdeal Belgium's cost) and as of June 30, 2004 the amount of
Page 30
inventory on consignment by customer, and (iii) for Surfix, as of October 29,
2004, the amount of inventory on consignment, broken down by distributor.
Adequate reserves have been established on Financial Statements and on each of
the Companies' books of account with respect to excessive and obsolete Inventory
(it being agreed that for the purposes of this Section 4.19, the term "excessive
and obsolete Inventory" shall refer to any on-hand raw materials, parts,
supplies, or finished products which
(a) cannot be sold at current prices in the ordinary course of business,
(b) are not usable in the production of current products, or
(c) consists of on-hand quantities in excess of one year's historical
usage except as set forth in Schedule 4.19 (c). Each of the
Companies has the proper amount of Inventory to conduct the Business
consistent with past practice).
4.20 Certifications; Product Safety
(a) All operations of each of the Companies have achieved and maintained
all required ISO (International Organization for Standardization)
and quality certification and are compliant with the applicable
United States Food and Drug Administration Quality System
Regulations and all French and European health, safety and other
regulations in all respects, all of which are listed on Schedule
4.20a).
(b) There is not pending and none of the Companies has since January 1,
2003 received any notice of or correspondence relating to any action
to, repeal, fail to renew or challenge any Government Approvals or
certificates of non-compliance with respect thereto nor to Sellers'
knowledge, is any such action, threatened. All Government Approvals
obtained by any of the Companies or by any of the Sellers in respect
of the Business are listed on Schedule 4.20(a).
(c) Except as set forth on Schedule 4.20(c), none of the Companies has
been required to file any notification or other report with or
provide information to any product safety agency, commission, board
or other Governmental Authority of any jurisdiction concerning
actual or potential hazards with respect to any Product
manufactured, distributed, sold or leased or service rendered by or
on behalf of any of the Companies with respect to the Business. Each
Product manufactured, sold or leased, or service rendered by or on
behalf of any of the Companies complies in all respects with all
product safety standards of each applicable product safety agency,
commission, board or other Governmental Authority. The Government
Approvals obtained by the Companies concern the following countries:
the member-states of the European Union and the countries
recognizing these Government Approvals by treaty (i.e., Switzerland,
Norway, etc), the United States of America and Canada. For the rest
of the world, Government Approvals are applied for and held by local
Distributors.
Page 31
4.21 Export
None of the Companies has directly to the Sellers' knowledge,
indirectly through any Distributor or other Person, sold or delivered any
Products in or to any of the following countries (or to any Person acting on
behalf of any of the following countries): Burma (Myanmar), Cuba, Iran, Liberia,
North Korea, Sudan, Syria or Zimbabwe.
4.22. Intellectual Property.
(a) Each of the Companies owns or is licensed or is otherwise entitled
to exercise, all rights to all patents, trademarks, trade names,
service marks, domain names, copyrights, trade secrets and other
intellectual property rights, and any applications or registrations
therefor, and all inventions, net lists, schematics, technical
drawings, technology, know-how, processes, formulas, algorithms,
computer software programs, documentation, and all other tangible
and intangible information or material in any form, used or proposed
to be used in the business of each of the Companies as currently
conducted or as proposed to be conducted, without any conflict with
or infringement of the rights of any other (collectively, the
"Intellectual Property Rights").
(b) Schedule 4.22(b) lists: (i) all copyrights, patents, patent
applications, trademarks, service marks, trade names, and other
company, product or service identifiers used in the Business and/or
owned by each of the Companies with respect to any Intellectual
Property Rights (other than shrink-wrap licenses and other software
licenses available to the general public) (collectively, the
"Company Intellectual Property Rights"); (ii) the jurisdiction(s) in
which an application for patent or application for registration of
each such Company and/or Subsidiary's Intellectual Property Right
has been made, including the respective application numbers and
dates; (iii) the jurisdiction(s) in which each such Company and/or
Subsidiary's Intellectual Property Right has been patented or
registered, including the respective patent or registration numbers
and dates; and (iv) all licenses, sublicenses and other agreements
to which each of the Companies is a party and pursuant to which any
other party is authorized to use, exercise or receive any benefit
from any Intellectual Property Right.
(c) Each of the Companies is the owner or exclusive licensee of, with
all right, title and interest in and to (free and clear of any
Liens), its Intellectual Property Rights and has the rights to use,
sell, license, assign, transfer, convey or dispose thereof or the
products, processes and materials covered thereby, except as set
forth in the licenses granted to the Companies as set forth in
Schedule 4.13(a)(iv). The Sellers and the Companies have taken all
necessary and appropriate
Page 32
steps, including without limitation the filing and prosecution of
patent, copyright, and trademark applications to protect their
interests in the each of the Companies' Intellectual Property Rights
in the countries listed on Schedule 4.22(b); and each of the
Companies has the exclusive right to file, prosecute, and maintain
such applications and the patents and registrations that issue
therefrom.
(d) To the best knowledge of the Sellers, all patents and registered
trademarks, service marks, and other company, product or service
identifiers and registered copyrights held by each of the Companies
are valid and enforceable.
(e) Each of the Companies has secured valid and enforceable written
assignments from the Sellers, all consultants, contractors,
employees and other persons who contributed to the creation or
development of the Companies Intellectual Property Rights of the
rights to such contributions that any of the Companies does not
already own by operation of law. In particular, each of the
Companies is in compliance with applicable law relating to employee
invention in all countries in which of the Companies has registered
Intellectual Property Rights including without limitation the
provisions of Article L 611-6 et seq, Articles R 611-1 et seq of the
French Intellectual Property Code.
(f) To the Sellers' knowledge, except for the matters set forth on
Schedule 4.9(k) but other than Balt Extrusion, there has not been
and there is not now any unauthorized use, infringement or
misappropriation of any of the Companies Intellectual Property
Rights by any third party.
(g) Except as set forth on Schedule 4.9(k), None of the Companies has
brought any actions or lawsuits alleging (i) infringement of any
Companies' Intellectual Property Rights or (ii) breach of any
license, sublicense or other agreement authorizing another party to
use the Companies Intellectual Property Rights and, to the Seller's
knowledge, there does not exist any facts which could form the basis
of any such action or lawsuit. Except for the Contracts listed on
Schedule 4.13(a)(ii) and (v), none of the Companies has entered into
any agreement granting any third party the right to bring
infringement actions with respect to, or otherwise to enforce rights
with respect to, any of the Companies Intellectual Property Rights.
(h) Except as set forth on Schedule 4.9(k), no person has asserted, and
none of the Sellers has any reason to believe there is any basis for
asserting, any claims with respect to the Intellectual Property
Rights (i) contesting the right of any of the Companies to use,
exercise, receive, sell, license, transfer or dispose of any
Intellectual Property Rights or any products, processes or materials
covered thereby or (ii) challenging the ownership, validity or
enforceability of any of the Intellectual Property Rights. No
Intellectual Property Right is subject to any outstanding order,
judgment, decree, stipulation or agreement related to or restricting
in any manner the licensing, assignment, transfer, use or conveyance
thereof by any of the Companies.
Page 33
(i) Schedule 4.22(b) separately lists: (i) all copyrights, patents,
patent applications, trademarks, service marks, trade names, and
other company, product or service identifiers licensed to each of
the Companies, other than software shrink-wrap licenses and other
software licenses available to the general public (the "In-Licensed
Intellectual Property Rights"); (ii) all licenses, sublicenses and
other agreements to which each of the Companies is a party and
pursuant to which each of the Companies is authorized to use,
exercise, or receive any benefit from any In-Licensed Intellectual
Property Right. Each of the Companies is in compliance with all
terms and conditions of all such licenses, sublicenses, and other
agreements. Except as set forth on Schedule 4.9(k), none of the
Sellers has any knowledge of any assertion, claim or threatened
claim that any of the Companies has breached any terms or conditions
of such licenses, sublicenses, or other agreements.
(j) No In-Licensed Intellectual Property Right is subject to any
outstanding order, judgment, decree, stipulation or agreement
related to or restricting in any manner the use or licensing thereof
by any of the Companies, except as specifically provided in the
license agreements and know-how and cooperation agreements listed on
Schedule 4.13(a)(ii).
(k) Except as specifically provided in the license agreements listed on
Schedule 4.13(a)(ii), each of the Companies has the right to sell,
assign, transfer, and convey all of its right, title and interest in
and to the Intellectual Property Rights and In-Licensed Intellectual
Property Rights. None of the Companies is, or will be as a result of
the execution and delivery of this Agreement or the consummation of
the transactions hereunder, in violation of, or lose or in any way
impair any rights pursuant to any license, sublicense or agreement
described in Schedule 4.22(b).
(l) Except as set forth on Schedule 4.9(k), there are no claims to the
effect that the manufacture, marketing, license, sale or use of any
product or service as now used or offered or proposed for use or
sale by any of the Companies infringes any copyright, patent, trade
secret, or other intellectual property or other right of any third
party or violates any license or agreement with any third party.
None of the Companies has received service of process or been
charged in writing as a defendant in any claim, suit, action or
proceeding which involves a claim of infringement of any patents,
trademarks, service marks, trade secret rights, copyrights or other
intellectual property rights and which has not been finally
terminated prior to the date hereof; there are no such charges or
claims outstanding; and none of the Companies has any outstanding
restrictions or infringement liability with respect to any patent,
trade secret, trademark, service xxxx, copyright or other
intellectual property right of another.
Page 34
(m) Except as set forth in the agreements with doctors and Distributors
listed in Schedule 4.13(a)(ii) and (v), none of the Companies has
entered into any agreement to indemnify any other person against any
charge of infringement of any third party intellectual property
right, Intellectual Property Right, or In-Licensed Intellectual
Property Right.
(n) Each of the Companies has taken all commercially reasonable and
appropriate steps to protect and preserve the confidentiality of all
inventions, algorithms, formulas, schematics, technical drawings,
ideas, know-how, processes not otherwise protected by patents or
patent applications, source code, program listings, and trade
secrets used or proposed to be used in the Business (the
"Confidential Information"). The Companies have obtained valid
written nondisclosure agreements from any party receiving
Confidential Information. All Confidential Information is presently
and as of the Closing Date will be located at the Companies'
addresses as set forth in this Agreement or with subcontractors.
None of the Companies nor, to the best of the Sellers' knowledge,
any employee or officer of any of the Companies, has ever used,
divulged or appropriated Confidential Information except for the
benefit of the Companies, or ever breached any of the Companies'
obligations under any confidentiality agreement or covenant. To the
Sellers' knowledge, no person has used, divulged or appropriated
Confidential Information to the detriment of any of the Companies
other than pursuant to the terms of written agreements between the
Companies and such other persons.
4.23. Transactions with Interested Persons.
Except to the extent specifically set forth on Schedule 4.23(a) or (b),
(a) None of the Companies nor any director, manager or other officer (or
immediate family member thereof) or, to the Sellers' knowledge,
employee (or immediate family member thereof) of any of the
Companies owns, directly or indirectly, on an individual or joint
basis, an interest of five percent (5%) or more in, or serves as a
director, manager or other officer, employee, consultant, contractor
or agent, of or to, any competitor or supplier of any of the
Companies, or any person or entity who or that has a Contract or
arrangement with any of the Companies; and,
(b) no director, manager or other officer or employee (or immediate
family member thereof) of any of the Companies has entered into any
agreement, contract or commitment of any type with any of the
Companies, including without limitation, agreements and instruments
relating to the lending of money to any of the Companies, leases of
property to the Companies or rental of equipment or machinery by any
of the Companies or Distribution Agreements.
Page 35
4.24. Permits; Compliance with Laws, etc.
Each of the Companies has all licenses, franchises, permits, and other
Governmental Approvals necessary or required for it to the conduct of the
Business, and Schedule 4.24 lists all such licenses, franchises, permits, and
other Governmental Approvals. Such licenses, franchises, permits, and other
Governmental Approvals are valid, and none of the Companies has received any
notice that any governmental authority intends to cancel, terminate, or not
renew any such license, franchise, permit, or other Governmental Approval. Each
of the Companies has substantially complied with and is in substantial
compliance with all French, Belgium, European Union, U.S, and foreign statutes,
laws, ordinances, regulations, rules, permits, judgments, orders, or decrees
applicable to them or any of its properties, assets, operations, and business,
including but not limited to competition laws and regulations, labor laws and
regulations, import export laws, laws governing the manufacture, storage,
import/export, sales, marketing and registration of medical devices, and laws
regarding the protection of databases containing personal data, and to the
Sellers' knowledge there does not exist any basis for any claim of default under
or violation of any such statute, law, ordinance, regulation, rule, permit,
judgment, order, or decree. None of the Companies, nor any director, manager,
officer, employee, agent, consultant or any other person or entity acting on its
or their behalf, have made, offered or provided any gift, entertainment,
payment, loan or other consideration for the purpose of influencing the
procurement of any favorable action by any Government Authority, regulator or
office, or any official or employee thereof or any relative (by blood or
marriage) of any such official or employee, in any way relating to the business
of any of the Companies.
4.25. Environmental Matters.
Each of the Companies is now and has been at all times in
substantial compliance with any and all applicable laws and regulations
pertaining to the regulation and protection of the environment and the health
and safety of the public and its employees.
4.26. Banks, Powers of Attorney.
SCHEDULE 4.26. hereto contains a correct and complete list setting forth the
name of each bank in which each of the Companies has an account or safe deposit
box, the names of all persons authorized to draw thereon or to have access
thereto, and the names of each person holding a power of attorney from any of
the Companies. None of the Companies has any outstanding power of attorney
granted to any person or entity.
4.27. Business Records.
(a) The minutes and related books of resolutions of each of the
Companies have been kept in accordance with the requirements of the
laws and regulations of its jurisdiction of incorporation and
contain true,
Page 36
accurate and complete records of all meetings of, and corporate
action taken by (including action taken by written consent), the
shareholders and members of the board of directors or other
corporate body, as may be applicable, of each of the Companies.
(b) All the accounts, books, ledgers, financial and other records of
each of the Companies are in each of the Companies' possession, have
been fully, properly and accurately kept and completed, are current,
do not contain any inaccuracies or discrepancies of any kind and
give and reflect a true and fair view of each of the Companies'
commercial transactions and financial and commercial position.
(c) The share ledger registries of each of the Companies are in the
possession of each of the Companies, have been properly maintained
and contain an accurate and complete record of the matters with
which they should deal.
4.28. Loans.
Except for advances against ordinary business expenses, and except
as set forth in Schedule 4.28, none of the Companies has granted any loans or
Indebtedness to any individual or to any Person, including without limitation
any of the Sellers or their family members.
Page 37
4.29. Off-Balance Sheet Undertakings; Parent Guarantees
Except as set forth in Schedule 4.29, none of the Companies has any
off-balance sheet liabilities or obligations, and in particular it has not
granted any guarantees (in any form whatsoever, including as a comfort letter),
sureties, warranties or securities with regard to the performance of obligations
contracted by third parties (including partners, shareholders, corporate
officers or members of its staff). None of the Companies is participating in any
"operations de portage" or interest rate or exchange rate swap agreements, nor
is it bound by any undertakings made on a futures market. None of the Sellers
has granted any guarantees (in any form whatsoever, including as a comfort
letter), sureties, warranties or securities with regard to the performance of
obligations contracted by any of the Companies.
4.30. No Brokers.
No agent, broker or other person is or will be entitled to any commission,
finder's fee or similar compensation in connection with any negotiations
relating to this Agreement, or the transactions contemplated hereby, except for
Opticroissance and Xxxxx Xxxxxxxx Corporate Finance, whose fees shall be paid by
the Sellers.
4.31. Disclosure.
No representation, warranty, statement or information contained in this
Agreement or the Schedules hereto contain any untrue statement of a fact or
omits any fact necessary in order to make the statements contained therein in
light of the circumstances under which they were made not misleading. None of
the Sellers has made any untrue statements and has not omitted to disclose any
fact about the assets, liabilities, financial position, Business or prospects of
any of the Companies. All copies of documents provided to the Purchaser,
including those provided in during the due diligence process, were true, correct
and complete copies and included all amendments, supplements and side letters.
It is understood that when information must appear in several Schedules to this
Agreement, the information in question can be set forth in only one of the
Schedules only if the Seller insures that a cross-reference thereto is set forth
in the other Schedules.
5. Representations of the Purchaser
The Purchaser hereby represents to the Sellers:
5.1 The Purchaser has the right, power and authority to execute and deliver this
Agreement and other agreements and documents contemplated by this Agreement and
to carry its obligations hereunder and thereunder;
Page 38
5.2 The Purchaser is able to finance the contemplated acquisition, without prior
approval of any lending institution;
5.3 The execution, delivery and performance by the Purchaser of this Agreement
and of any other agreement or document contemplated by this Agreement: (i) will
not violate or conflict with the certificate of incorporation or by-laws of
Integra; (ii) will not violate any law, regulation, order or judgment of any
Governmental Authority applicable to Integra; and (iii) will not violate,
conflict with, or constitute default (or an event which, with notice or lapse of
time or both, would constitute a default) under, any agreement to which Integra
is a party, except for any such violation, conflict or default which would not
materially impair Integra's ability to perform its obligations under this
Agreement.
5.4 The Purchaser has no agreements with the current advisors to the Sellers
(accountants, lawyers, statutory auditors, intermediaries) that would affect
their independence in the context of the sale contemplated hereby.
6. Covenants.
6.1 Covenants of the Sellers.
6.1.1 Non-Competition.
(a) Each of the Sellers covenants and agrees that, for a period of five
years commencing on the Closing Date, it shall not, directly or
indirectly, except to the extent any of them remains employed by any
of the Companies or by the Purchaser:
(i) participate or engage in a business related to the
manufacture, the sale and maintenance of products, orthopedic
implants for feet or ankles, or the provision of services,
that are similar to or competitive with the Business or any
part thereof anywhere in the European Union, Switzerland,
United States of America, Canada, Japan and Australia
(ii) induce or attempt to induce any Person who, at the time
of such inducement, is an employee of the Purchaser or any of
its affiliates, or any of the Companies to perform work or
services for any other person, firm, corporation, association,
venture, partnership or entity other than the Purchaser or any
of its affiliates, or any of the Companies or personally
participate in the recruitment or hiring of any such person by
any such entity; nor
(iii) own any shares or interest in any person, firm,
corporation, association, venture, partnership or entity that
directly or indirectly competes with any of the Companies or
the Business, except as permitted under Section 6.1.1(b).
Page 39
(b) Notwithstanding the foregoing, each of the Sellers may own, directly
or indirectly, solely as an investment, up to two percent (2%) of
any class of securities of any entity that compete with the Business
and that are traded on a U.S. national or European securities
exchange or quotation system such as the NASDAQ. It is understood
that Giet currently owns approximately 30% of G2P, a French societe
anonyme that manufacturers for the Companies and may also
manufacture product for competitors. Giet hereby agrees to sell all
such shares not later than December 31, 2005.
(c) The breach by one or more Sellers of the noncompetition obligations
in this Section 6.1.1 will not be subject to the limitation of
liability in Sections 7.2(a) and 7.2(b).
6.1.2. Maintenance and Conduct of Business.
(a) During the period from the date hereof through the Closing Date,
each of the Sellers covenants that it shall continue, and cause the
officers of each of the Companies to continue to manage the affairs
of each of the Companies and the Business with the same degree of
care as heretofore exercised, and, each of the Sellers further
covenants to continue to manage the Business with the same degree of
care as heretofore exercised. If any of the Sellers becomes aware of
a material deterioration in the Business or any of the Companies or
in a relationship with any customer, supplier, licensee or officer,
employee or agent with respect to the Business, operations and
facilities, it will promptly bring such information to the attention
of the Purchaser and will use its best efforts in cooperation with
the Purchase to restore such relationship except as otherwise
mutually agreed.
(b) From the date hereof through the Closing Date, except as expressly
permitted hereby or by the Purchaser in writing (permission given
within a reasonable time period not to exceed three (3) days in the
absence of which permission will be deemed given), each of the
Sellers covenants that it shall cause each of the Companies, without
prior express written consent of the Purchaser, not to:
(i) except for transactions necessary to satisfy the Closing
Conditions, incur any obligation or liability (absolute or
contingent) other than current liabilities and obligations
incurred in the ordinary course of business, or indebtedness
for money borrowed, or guarantee any indebtedness or
obligation of any other party;
Page 40
(ii) except for transactions necessary to satisfy the Closing
Conditions, set aside or pay any dividend or distribution of
assets, or repurchase any of its stock;
(iii) issue or grant any securities, including any options,
warrants or rights to subscribe for its common stock or
securities convertible into or exercisable for its common
stock or enter into any agreement with respect thereto;
(iv) enter into, amend or terminate any employment or
consulting agreement or any similar agreement or arrangement
or hire any employee (except for fixed term employment
agreements having terms of not more than two months);
(v) increase or modify the compensation or other benefits
payable or to become payable to any of its officers,
directors, employees or agents, or any relative of any such
person, or adopt or amend any employee benefit plan or
arrangement;
(vi) acquire, or dispose of, by sale, lease, license or other
means, any tangible or intangible properties or assets used in
its business (including but not limited to cash and cash
equivalents) except in the ordinary course of business
consistent with past practice;
(vii) waive or commit to waive any rights of substantial value
or cancel any debts or claims;
(viii) permit any change in the nature of its status as a
manufacturer and seller of medical devices or the manner in
which its books and records are maintained;
(ix) create or suffer to be imposed any Lien or other charge
on or against its properties or assets, whether tangible or
intangible;
(x) enter into, amend or terminate any lease of real or
personal property except automobile and office equipment
leases in the ordinary course of business consistent with past
practice;
(xi) amend its bylaws, its certificate of incorporation or any
other governing provisions;
(xii) other than in the ordinary course of its business and
consistent with past practice, enter into any material
Contract or commitment, or violate, amend or otherwise modify,
terminate or waive any of the terms of any of its Contracts,
or engage in any activities or transactions , including,
without limitation, entering into a Contract with a customer
on terms which reflect a discount of more than five (5%)
percent of the customary rates for the product or service
covered by such Contract;
Page 41
(xiii) accelerate the vesting of any employee stock benefit
(including vesting under stock purchase agreements or
exercisability of stock options) or waive any repurchase right
or other right of forfeiture or take any other action designed
to accomplish the foregoing;
(xiv) grant any bonus, severance or termination pay to any
director, officer, employee or consultant, except mandatory
payments made pursuant to standard written agreements
outstanding on the date hereof (with any such agreement or
arrangement to be disclosed by the Sellers);
(xv) abandon, dispose of, transfer or license to any person or
entity any rights to the Intellectual Property Rights;
(xvi) other than in the ordinary course of business and
consistent with past practice, make or change any material
election in respect of Taxes, adopt or change any accounting
method in respect of Taxes, file any material Tax Return or
any amendment to a material Tax Return, enter into any closing
agreement, settle any material claim or assessment in respect
of Taxes, or consent to any extension or waiver of the
limitation period applicable to any material claim or
assessment in respect of Taxes except for amounts paid
pursuant to the tax audit described on Schedule 4.10;
(xvii) sell, lease, license or otherwise dispose of, or accept
any order for, Products or services other than in the ordinary
course of business consistent with past practice;
(xviii) revalue any of its assets, including without
limitation writing down the value of Inventory or writing off
notes or accounts receivable other than in the ordinary course
of business consistent with past practice;
(xix) fail to pay or otherwise satisfy its monetary
obligations as they become due, except such as are being
contested in good faith;
(xx) take or agree to take, any action which would cause a
breach of its representations or warranties contained in this
Agreement or prevent it from performing or cause it not to
perform its covenants hereunder;
(xxi) make or institute any unusual or new methods of
manufacture, purchase, sale, distribution, shipment or
delivery, lease, management, accounting or operation, or ship
or deliver any quantity of Products in excess of normal
shipment or delivery levels;
Page 42
(xxii) make any capital expenditure or commitment for any
capital expenditure in excess of ten thousand (10,000) Euro in
the aggregate except for instruments under consignment;
(xxiii) commence or settle any litigation that, if adversely
determined, could restrict the operations of any of the
Companies or would have a Material Adverse Effect;
(xxiv) change its accounting methods or practices
(xxv) open any new bank accounts;
(xxvi) pay any professional advisors fees with respect to the
transactions contemplated in this Agreement, including,
without limitation, accounting, legal, advisory or consulting
fees; or
(xxvii) enter into a Distribution Agreement except in Turkey,
the Czech Republic, Hungary, Chile or Venezuela.
6.1.3. Access to Information
Each of the Sellers shall, and cause the Company to, give to the
Purchaser and its accountants, legal counsel and other representatives full and
complete access on terms regarding scheduling to be mutually agreed, during
normal business hours throughout the period from the date hereof to the Closing,
to all of the properties, technology, software, patents, patent applications,
trademarks, trademark applications, copyrights, copyright applications, books,
Contracts, commitments and records relating to the business, assets and
liabilities of each of the Companies, and furnish the Purchaser, its
accountants, legal counsel and other representatives during such period all
information concerning the affairs of each of the Companies, as the Purchaser
may reasonably request.
6.1.4. Statutory auditors
Sellers shall use their best efforts prior to the Closing to obtain
from the Companies's statutory auditors their resignations, effective the date
of the shareholders' meeting approving the accounts for fiscal year 2004 as well
as an agreement from such the statutory auditors to cooperate with the Companies
and the Purchaser after their resignation and provide at Purchaser's expense,
the Companies and the Purchaser with the information necessary to enable the
Companies and the Purchaser to file any required financial statement for any
period, including but not limited to any period through the Closing Date.
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6.1.5. Loans and Pledges
The Sellers shall assure that the indebtedness referred to in
Schedule 4.4(b)(1) will be reimbursed prior to the Closing Date in a manner such
that all the releases of pledges on any shares of any of the Companies are
obtained.
6.2. Covenant of the Purchaser and the Sellers
The parties hereby covenant and agree that:
6.2.1. Taxes.
The Sellers shall pay all Taxes on the capital gains generated by
sale of the Company Shares, and the Purchaser shall pay all registration Taxes
and stamp duties in connection with the transfer of the Company Shares to the
Purchaser.
6.2.2. Cooperation
Each party shall cooperate with the other party to secure all
necessary consents, approvals, authorizations, exemptions and waivers from any
third party or authority as shall be required in order to able such other party
to consummate the transactions contemplated hereby.
6.2.3. Further Assurances.
(a) Each Party hereto agrees to do or cause to be done, or to cause
each of the Companies to do or cause to be done, such further acts and things
and deliver or cause to be delivered to any of the other Parties such additional
assignments, agreements, powers, and instruments as any of the other parties may
reasonably require to carry into effect the purposes of this Agreement or to
better assure and confirm unto the Purchaser and each of the Sellers their
respective rights, powers, and remedies hereunder and thereunder. In particular,
between the date of this Agreement and the Closing, each Seller will promptly
notify Purchaser if it becomes aware of (i) any breach, when made, of the
representations and warranties contained in Article 4 of this Agreement, (ii)
any fact that would constitute such a breach if such representations and
warranties had been made as of the time of its awareness of such fact, (iii) any
breach by a Seller of a covenant contained in this Agreement, or (iv) any fact
that makes the satisfaction of the conditions contained in Article 3 of this
Agreement impossible or unlikely.
(b) For at least until the first anniversary of the Closing Date,
the Sellers shall use their best efforts to make the transition of the Business
to
Page 44
the Purchaser a success and in particular shall use their best efforts to
preserve and maintain (and where desirable, improve and expand) existing
relationships with all employees, consultants, independent contractors,
Distributors and other customers, suppliers and medical professionals. The
Sellers shall diligently perform all duties and obligations set forth in any
employment or other agreements between any of them and any of the Companies.
6.3. Bank Guarantee.
The Sellers shall obtain from a bank of international rank and
deliver on the Closing Date the issuance of a bank guarantee granted to the
benefit of the Purchaser and the Companies in order to partially secure the
indemnification obligations of each of the Sellers as set out in Section 7
hereof, substantially in the form as set out in Exhibit 3.2(k) hereto.
6.4 Termination of a Distributor
The Sellers shall cause Newdeal USA to give notice of cessationof
its relationship with its Distributor in the United States and Canada, such
notice to be effective no later than November 15, 2004
7. Indemnification.
7.1. Indemnification of the Purchaser and the Companies.
(a) From and after the Closing Date, (i) Fourcault, Knevels, and Giet,
jointly and severally to the extent provided for in Section 7.1(b)
and pro rata to their shares sold otherwise, and (ii) Gauneau, pro
rata to his shares sold, will indemnify, defend, and hold harmless,
each by way of a reduction in the Purchase Price, the Purchaser, or
at the Purchaser's election, directly one or more of the Companies
(collectively, "Purchaser Indemnified Parties") in an amount of any
damage, liability, claim, prejudice, reduction in value of any asset
or expense (including interest, penalties, and accountants',
experts', counsels and attorneys' fees and disbursements incurred in
a third party action) (collectively, the "Damages") that one of the
Companies or the Purchaser may incur or be required to assume and
that flows or results from (a) any inaccuracy or breach of the
Seller's written representations or warranties made in or pursuant
to this Agreement, or (b) the breach of any covenant, obligation, or
agreements to be performed, fulfilled, or complied with pursuant to
this Agreement ; or (c) any event, fact or transaction arising or
having its origin or cause prior to the Closing Date; or (d) without
limiting the scope of Section 4.10, any Tax incurred by any of the
Companies or the loss of any Tax benefit following a reassessment or
challenge by any Tax Authority in relation to any fact or event
arising prior to the Closing Date and in relation to which the
corresponding Tax was not paid on its due date for payment, or for
which the Tax Returns were either not made on the appropriate date
or were incorrect for any reason.
Page 45
(b) For purposes of this Agreement, "joint and several" with respect to
Fourcault, Knevels, and Giet means (without limitation in any way of
the concept of "responsabilite conjointe et solidaire" under French
Law) that, until the date that is three years and one month after the
Closing Date, each of Fourcault, Knevels, and Giet will be liable for
any inaccurancies in or breaches of representations, warranties,
covenants, obligations or agreements with respect to Damages of up to
three million eight hundred thousand Euros (EUR 3,800,000) even if such
representation, warranty, convenant, obligation or agreement was not
made or breached by, or inaccurate with respect to, such Seller.
(c) In determining the amount to be paid to the Purchaser Indemnified
Parties in respect of any Damages, the following will be taken into
account:
(i) in order to set the amount of the indemnification due by the
Sellers, the tax-deductible nature of the Damages suffered by the
Purchaser or one of the Companies will be taken into account;
(ii) any amount actually paid by insurance or other indemnity,
contribution or other payment from a third party which
compensates for all or part of the Damage will be deducted;
(iii) VAT on Damages will not be taken into account to the extent
it is recoverable by one of the Companies, except as concerns
late penalties and indemnities related thereto;
(iv) in no case may Damages be claimed on an item that has been
reserved for in the Closing Balance Sheet, up to the amount of
such reserve;
(v) any amount that has already been taken into account in the
Post Closing Adjustment will not give rise to indemnification;
(vi) any Damage that results from a change of any law after the
Closing Date may not give rise to any indemnification;
(vii) any Damage resulting from a change in the accounting
methods or practices of the Companies that occurs after the
Closing Date cannot given rise to any indemnification.
7.2. Limitation on Indemnification.
(a) The Sellers shall not be obligated to indemnify the Purchaser
Indemnified Parties for any Damages (as defined above) based on any
inaccuracy or breach of any of the representations or warranties made
in or pursuant to this Agreement, until the aggregate amount of all
Damages incurred with respect to all such claims are greater than three
hundred and thirty five thousand Euro (EUR 335,000) (the "Threshold"),
after which the Sellers shall be obligated to indemnify the Purchaser
Indemnified Parties for all Damages represented by such claims in
excess of two hundred thousand Euro (EUR 200,000) (the "Deductible").
Page 46
(b) The maximum liability that the Sellers shall have under this Article 7
shall be seven million seven hundred thousand Euro (EUR 7,700,000 Euro)
(the "Cap").
(c) Notwithstanding the provisions of Sections 7.2(a) and (b), none of the
Threshold, the Deductible, or the Cap shall apply to any breaches of
the Sellers of Full Liability Matters, which are the obligations of
Sellers under this Agreement, as well as the representations and
warranties set forth in Sections 4.1, 4.2, 4.3, 4.4, 4.5, and 4.10.
(d) Each Seller's indemnification obligations in respect of breaches of
Full Liability Matters shall be capped at a maximum amount of Damages
(suffered collectively by any of the Purchaser Indemnified Parties)
equal to (x) the amount of the Purchase Price received by such Seller,
less (y) the amount of all sums paid by such Seller to the Purchaser
Indemnified Parties under its indemnification obligations.
(e) Further, notwithstanding anything to the contrary in this Agreement,
the disclosures in Schedules 4.10(b) and 4.16(b)(ii) shall not
discharge the Sellers from any damages resulting from such matters.
7.3. Indemnity Procedure regarding Damages suffered by any Purchaser Indemnified
Party
(a) Notice and Defense.
(i) Notice. If a claim for Damages (an "Indemnity Claim") is
to be made by a Purchaser Indemnified Party, such party shall give
notice (an "Indemnity Claim Notice") to the Sellers as promptly as
practicable after the Purchaser Indemnified Party becomes aware of any
fact, condition or event which may give rise to Damages for which
indemnification may be sought, but in any event, if applicable, within
the period specified in Section 7.4. If any a lawsuit or proceeding is
filed against any Purchaser Indemnified Party, notice thereof shall be
given to the Sellers as promptly as practicable (and in any event
within ten (10) business days after service). The failure of any
Purchaser Indemnified Party to give timely notice hereunder shall not
affect rights to indemnification hereunder, except to the extent that
the indemnifying party demonstrates actual damage caused by such
failure.
Page 47
(ii) Conduct of Defense. After such notice, the Sellers shall
be entitled, if they so elect: (x) to take control of the defense and
investigation of such lawsuit or proceeding; (y) to employ and engage
attorneys of their own choice to handle and defend the same (unless the
named parties include both the indemnifying party and the Purchaser
Indemnified Party and the latter has been advised in writing by counsel
that there may be one or more legal defenses available to such
Purchaser Indemnified Party that are different from or additional to
those available to the Sellers, in which event the Purchaser
Indemnified Party shall be entitled to separate counsel of its own
choosing); and (z) to compromise or settle such lawsuit or proceeding,
which compromise or settlement shall be made only with the written
consent of the Purchaser Indemnified Party, which consent shall not be
unreasonably withheld or delayed. The Purchaser Indemnified Party shall
cooperate fully with Sellers in the defense of such claim, including
making available to the Sellers and its counsel such documents,
information, or other materials that are indispensable for handling
such defense. If the Sellers fail to assume the defense within fifteen
(15) calendar days after receipt of the Indemnity Claim Notice, the
Purchaser Indemnified Party against which such lawsuit or proceeding
has been asserted will (upon delivering notice to such effect to the
Sellers) have the right to undertake, at the Sellers' expense, the
defense, compromise or settlement of such Action; provided, however,
that such lawsuit or proceeding shall not be compromised or settled
without the written consent of the Sellers, which consent shall not be
unreasonably withheld or delayed.
Page 48
(b) Payment.
All amounts payable by the Sellers as a result of any final,
unappealable adverse judgment obtained against any of the Companies,
shall become immediately due to the Purchaser Indemnified Party. In the
event of an adverse judgment subject to appeal, unless such judgment is
subject to immediate execution, no amount shall be payable to the
Purchaser Indemnified Party until the expiration of the deadline for
appeal, and thereafter should the Sellers decide to pursue such appeal,
until a judgment has been obtained upon appeal; provided, the Sellers
shall pay for any guarantee or bond that may be required pending such
appellate judgement. Notwithstanding anything set forth in this Section
7.3(b), Purchaser Indemnified Parties shall have the right to offset
amounts due to Purchaser Indemnified Parties pursuant to this Section 7
against the Anniversary Payment.
7.4. Survival of Representations, Warranties, Covenants and Indemnification.
(a) The representations and warranties set forth in this Agreement shall
survive the Closing and will expire upon the third anniversary of the
Closing Date, except
(i) the Full Liability Matters, shall survive until the earlier of
(x) the expiration of a three (3) month period following the
expiration of the applicable statute of limitations period and
(y) the tenth anniversary of the Closing Date, and
(ii) representations and warranties under which a claim has been
notified in writing to the Sellers in accordance with Section
7.3 hereof, as applicable, prior to the date on which such
representations or warranties would otherwise expire shall
survive until such claim has been resolved.
(b) The representations and warranties of the Sellers shall not be affected
or deemed waived by reason of any investigation made by or on behalf of
the Purchaser (including but not limited to by any of its advisors,
consultants or representatives) or (other than in respect of
disclosures contained or set forth in the disclosure schedules) by
reason of the fact that the Purchaser or any of such advisors,
consultants or representatives knew or should have known that any such
representation or warranty is or might be inaccurate.
7.5. Sellers Waiver of Subrogation, Contribution and Indemnification Claims.
Effective at Closing, each Seller hereby irrevocably waives and
releases the Companies from any claim to or right of indemnification against any
of the Companies. If any of the Sellers (or any family member or other affiliate
of any Seller) has any claims, whether known or unknown, against any of the
Companies arising out of any event occurring or state of facts existing on or
prior to the Closing Date, all such claims, whether or not assigned to any third
party, are hereby released, discharged and waived.
Page 49
7.6 Purchaser Insurance
For a period of three years after the Closing Date, the Purchaser shall
maintain insurance for product liability for the products of the Companies at
substantially the same as for other medical device products of the Purchaser.
8. Termination before Closing
This Agreement may be terminated ipso facto by notice at any time prior
to Closing:
(a) By the written consent of the Purchaser and Sellers;
(b) By the Purchaser if (i) there is a material breach of any covenant
to be performed by any Seller under this Agreement which has not been waived by
the Purchaser, (ii) satisfaction of any condition contained in Article 3 has
become impossible (other than through a breach of a covenant contained in this
Agreement by the Purchaser) and Purchasers have not waived such condition, or
(iii) if the Closing has not occurred on or before January 6, 2005, or such
later date as the parties may agree upon in writing, unless the Purchaser is in
material breach of this Agreement; or
(c) By Sellers if (i) there is a material breach of any covenant to be
performed by the Purchaser under this Agreement which has not been waived by
Sellers, (ii) satisfaction of any condition contained in Article 3 has become
impossible (other than through a breach of covenant contained in this Agreement
by any Seller) and Sellers have not waived such condition or (iii) if the
Closing has not occurred on or before January 6, 2005, or such later date as the
parties may agree upon in writing, unless a Seller is in material breach of this
Agreement.
9. Miscellaneous.
9.1. Complete Agreement; Amendments; Waivers.
This Agreement, together with the Schedules and Exhibits hereto and
thereto, contains the entire agreement of the Parties with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
oral or written, with respect thereto. This Agreement may be amended only by a
written instrument signed by the Parties hereto. No provision of this Agreement
may be waived without a written instrument signed by the waiving Party. The
failure of any Party to insist, in any one or more instances, on performance of
Page 50
any of the terms or conditions of this Agreement will not be construed as a
waiver or relinquishment of any rights granted hereunder or of the future
performance of any such term, covenant, or condition, but the obligations of the
Parties with respect thereto will continue in full force and effect.
9.2. Successors and Assigns.
This Agreement will inure to the benefit of, and be binding upon, the
Parties hereto and their respective executors, heirs, and permissible assigns.
Neither this Agreement nor any of the rights or obligations hereunder (or under
any document delivered pursuant hereto) may be assigned by a Party hereto
without the prior written consent of the other Parties, except that the
Purchaser may assign this Agreement to any of its subsidiaries or affiliates
without the prior written consent of any Party.
Page 51
9.3. Governing Law; Jurisdiction.
This Agreement will be construed and enforced in accordance with the laws of
France. Any dispute relating to this Agreement (other than under Section 2.5.2)
shall be brought exclusively in the Commercial Court of Paris.
9.4. Notices.
All notices, claims, requests, demands, and other communications
hereunder will be in writing and will be duly given if: (a) personally delivered
or sent via telecopy or (b) sent by Federal Express, DHL, or UPS (for next
business day delivery or second business delivery in the case of international
shipments), shipping prepaid as follows:
If to the Purchaser, to:
Integra Life Sciences Holding Corporation
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
XXX
Fax number: xx 000-000-0000.Attn: General Counsel
with a copy to counsel :
Xxxx & Associes
00, xxx Xxxxxx x'Xxxxxxx
00000 Xxxxx
Xxxxxx
Fax number: xx 00 0 00 00 00 00
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
If to the Sellers, to each of them at the address set forth on the first page of
this Agreement.
with a copy to counsel:
CEFIDES
Immeuble le Britannia (Bat.C)
20, boulevard Xxxxxx Xxxxxxxx
69432 Xxxx Xxxxx 00
Xxxxxx
Fax number : xx 00 0 00 00 00 00
Attn : Yves Conan, Esq.
Page 52
or to such other address or addresses as the party to whom notice is to be given
may have previously furnished to the others in writing in the manner set forth
above. Notices will be deemed given at the time of personal delivery or
completed telecopy, or, if sent by reputable overnight courier, one business day
after such sending or two business days after sending in the case of
international shipments.
9.5. Expenses.
No expenses of the Seller or the Company incurred in connection with
the transactions contemplated by this Agreement (including, without limitation,
Taxes or accounting and legal fees incurred in connection therewith) shall be
paid by or deemed a liability of any of the Companies (or reflected on the
Financial Statements), and the Sellers (and none of the Companies) shall bear
their own expenses and those of the Companies with respect to the foregoing and
the Purchaser shall bear its own expenses in connection therewith. However, all
expenses relating to the by-law amendments and changes in governing bodies of
each of the Companies concerned shall not be borne by the Sellers for purposes
of calculation of the Post-Closing Adjustment.
9.6. Headings; Form of Words.
The headings contained in this Agreement (including but not limited to
the titles of the Schedules and Exhibits hereto) have been inserted for the
convenience of reference only, and neither such headings nor the placement of
any term hereof under any particular heading will in any way restrict or modify
any of the terms or provisions hereof. Terms used in the singular will be read
in the plural, and vice versa, and terms used in the masculine gender will be
read in the feminine or neuter gender when the context so requires, and vice
versa.
9.7. Severability.
The provisions of this Agreement will be deemed severable, and if any
part of any provision is held to be illegal, void, voidable, invalid,
nonbinding, or unenforceable in its entirety or partially or as to any party,
for any reason, such provision may be changed, consistent with the intent of the
Parties hereto, to the extent reasonably necessary to make the provision, as so
changed, legal, valid, binding, and enforceable. If any provision of this
Agreement is held to be illegal, void, voidable, invalid, nonbinding, or
unenforceable in its entirety or partially or as to any Party, for any reason,
and if such provision cannot be changed consistent with the intent of the
Parties hereto to make it fully legal, valid, binding, and enforceable, then
such provisions will be stricken from this Agreement, and the remaining
provisions of this Agreement will not in any way be affected or impaired, but
will remain in full force and effect.
Page 53
9.8 Public Announcements
Neither the Purchaser no the Sellers shall make public in any
way or otherwise disclose any information with respect to this Agreement
except with the prior consultation with the other Parties or except in so far as
is required by any Governmental Authority, in which case the Party required
to provide information shall inform the other Parties.
9.9. Language of Agreement.
Because the Purchaser is a United States of America company and certain
of the Sellers are French, the Parties to this Agreement expressly declare that
it is their express intention that this Agreement be drawn up both in the
English and in the French language. In the event of any inconsistency between
the English and the French versions, the French version shall prevail.
Page 54
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as of
the date first above written in three original copies.
FOR INTEGRA LIFESCIENCES HOLDINGS CORPORATION:
By: /s/ Xxxx X. Xxxxxxxx, III
-------------------------
Name: Xxxx X. Xxxxxxxx, III
Title: Executive Vice President, Chief Administrative Officer
THE SELLERS :
/s/ Xxxx Xxxxxxxxx
---------------------------------
Xx. Xxxx Xxxxxxxxx
/s/ Xxxx Xxxxxxx
---------------------------------
Xx. Xxxx Xxxxxxx
/s/ Xxxx-Xxxxxxxxxx Xxxx
---------------------------------
Xx. Xxxx-Xxxxxxxxxx Xxxx
/s/ Xxxxxxxx Xxxxxxx
---------------------------------
Xx. Xxxxxxxx Gauneau
Page 55
