EXHIBIT 10.50
QUOTA PURCHASE AND SALE AGREEMENT AND NON-COMPETITION AGREEMENT
[
QUOTA PURCHASE AND SALE AGREEMENT
By this private instrument and in the best form of law,
ON THE ONE SIDE:
1. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, Brazilian citizen, single,
lawyer, resident and domiciled in Sao Paulo, State of Sao
Paulo, at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇, bearer of Identity Card RG no. 3.173.771 SSP/SP and
Individual Taxpayer Card CPF/MF no. ▇▇▇.▇▇▇.▇▇▇-▇▇ SSP/SP
(hereinafter referred to as "▇▇▇▇▇▇▇"); and
2. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, Brazilian citizen, separated,
engineer, resident and domiciled in Sao Paulo, State of Sao
Paulo, at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇, bearer of Identity Card RG no. 6.325.753 SSP/SP and
Individual Taxpayer Card CPF/MF no. ▇▇▇.▇▇▇.▇▇▇-▇▇ SSP/SP
(hereinafter referred to as "▇▇▇▇▇▇▇"),
▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇ HEREINAFTER COLLECTIVELY REFERRED TO AS
THE "SELLERS";
AND, ON THE OTHER SIDE:
3. HEMAGEN DIAGNOSTICS, INC., a company duly organized and
existing under the laws of Delaware, United States of America,
with head offices in ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
- ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, herein duly represented by
its attorney-in-fact Mr. Paulo ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
(hereinafter referred to as "BUYER");
WITNESSETH:
WHEREAS, ▇▇▇▇▇▇▇ is the owner of 266,151 (two hundred sixty-six thousand,
one hundred fifty-one) quotas, representing 16.33% (sixteen point
thirty-three percent) of the capital stock of HEMAGEN DIAGNOSTICOS
COMERCIO, IMPORTACAO E EXPORTACAO LTDA., a limited liability business
company, with head offices in
the city of Sao Paulo, State of Sao Paulo, Brazil, at Rua ▇▇▇▇▇ ▇▇▇▇▇▇▇,
222, Pinheiros, Zip Code 05423-010, with its incorporation documents filed
with the Board of Commerce of the State of Sao Paulo under no.
35.209.488.211on July 26, 1990, CNPJ/MF no. 64.002.686/0001-32
(hereinafter referred to as "COMPANY");
WHEREAS, ▇▇▇▇▇▇▇ is the owner of 266,151 (two hundred sixty-six thousand,
one hundred fifty-one) quotas, representing 16.33% (sixteen point
thirty-three percent) of the capital stock of the COMPANY (ZULEIKA'S
quotas and ROBERTO'S quotas, jointly hereinafter referred to as the
"QUOTAS")
WHEREAS, the SELLERS wish to sell the QUOTAS to BUYER; and
WHEREAS, BUYER wishes to acquire the QUOTAS, all in accordance with the
terms and conditions hereinafter set forth,
NOW, THEREFORE, the parties have mutually agreed and contracted the
following terms and conditions, which they mutually grant and accept, to
wit:
1. PURCHASE AND SALE OF THE QUOTAS
1.1. Each of the SELLERS hereby sells to the BUYER (and/or its
designees), and the BUYER (and/or its designees) purchases from each of
the SELLERS, the totality of the quotas held by it in the capital stock of
the COMPANY.
1.2 The QUOTAS are free and unencumbered of any liens, pledges,
charges, to their alienation or litigation of any kind.
1.3. The parties also execute on this date an amendment to the
Articles of Association of the COMPANY in order to formalize the transfer
of the QUOTAS provided herein.
2. PRICE - PAYMENTS
2.1. PRICE. The total price for the QUOTAS (hereinafter "PRICE")
shall be US$20,000.00 (twenty thousand United States Dollars), to be paid
by the BUYER (and/or its designees) to the SELLERS as follows:
(a) US$10,000.00 (ten thousand United States Dollars) are
paid to ▇▇▇▇▇▇▇ upon execution of this Agreement; and
(b) US$10,000.00 (ten thousand United States Dollars) are
paid to ▇▇▇▇▇▇▇ upon execution of this Agreement.
2.2. The conversion from United States Dollars into Brazilian Reais
for the purpose of any of the payments provided for in this Section 2,
shall be effected through an exchange contract providing for the
conversion of U.S. Dollars into Reais in accordance with the official
exchange rate prevailing on the date of execution of the exchange
contract, to be entered into between each of the SELLERS and the banks
indicated below:
Payment to ▇▇▇▇▇▇▇:
Bank: Banco do Brasil S/A (001)
SWIFT: ▇▇▇▇▇▇▇▇▇▇▇
Credit to the account: Ag. Itaim Bibi - SP (2807-X), bank account No.
6375-4 for the acquisition of equity participation ("transfer?ncia de
titularidade de quotas" - "natureza da operacao": 70205) in the COMPANY
for registration with the Central Bank of Brazil under RDE-IED under No.
IA009686
Payment to ▇▇▇▇▇▇▇:
Bank: Itau S/A (341)
SWIFT: ITAU BR SP
Credit to the account: Ag. 3741, bank account No. 30.272-7 for the
acquisition of equity participation ("transfer?ncia de titularidade de
quotas" - "natureza da operacao": 70205) in the COMPANY for registration
with the Central Bank of Brazil under RDE-IED under No. IA009686
2.3. SELLERS hereby give BUYER full release regarding the payment of
the PRICE.
3. REPRESENTATIONS AND WARRANTIES BY THE SELLERS
3.1. The BUYER has agreed to purchase the QUOTAS in reliance upon
the representations and warranties made by the SELLERS concerning the
situation and business standing of the COMPANY. With full knowledge that
such representations and warranties are fundamental to the object of this
Agreement, the SELLERS hereby, jointly and severally declare and warrant
that:
3.1.1. The COMPANY is a limited liability business company
duly organized and validly existing and in good standing under the laws of
the Federative Republic of Brazil and is duly qualified to do business in
the jurisdictions where its properties are located or where its businesses
are conducted, and it has full right and authority to own its properties
and to conduct its business.
3.1.2. All QUOTAS are paid up and free of any lien or burdens
whatsoever. The SELLERS are not a party to any contract or obligation
whereby they have granted to third parties the right to purchase, obtain
or acquire any rights on the QUOTAS. The QUOTAS have equal rights in
respect of voting, profit distribution, subscription to new capital and
all such matters affecting the rights of partners.
3.1.3. The QUOTAS may be freely assigned and transferred,
without the need of prior approval or authorization of any public or
governmental agency or authority.
3.1.4. The SELLERS have full rights to assign and transfer the
QUOTAS to the BUYER and upon the transfer hereunder the BUYER shall
acquire a valid and transferable title on such QUOTAS free and
unencumbered of any liens, restrictions or rights of third parties,
individuals or legal entities.
3.1.5. All the trademarks, patents, licenses, models,
privileges and product registrations owned by the COMPANY are of full,
legitimate and unquestionable property of the COMPANY and, except for the
proceedings listed in Exhibit 3.1.5.A, the SELLERS have no knowledge of
any infringement to any intellectual rights of the COMPANY. The
intellectual property rights and product registrations of COMPANY, which
are sole property of the COMPANY, are listed in Exhibit 3.1.5.B. Neither
SELLER has any personal interest or claim on any of the COMPANY'S
trademarks, name or product registrations, all of which are in good
standing as of this date.
3.1.6. Attached hereto as Exhibit 3.1.6 are copies of the
Balance Sheet and other financial statements of the COMPANY drawn up as of
December 31, 2003 (hereinafter referred to as "FINANCIAL STATEMENTS"). To
the best of the SELLERS' knowledge (and they have not made any
investigation in such regard), such FINANCIAL STATEMENTS show accurately
(i) the financial position of the COMPANY on the date on which they were
drawn up and (ii) the results of the operations of the COMPANY during the
periods closed on the respective dates.
3.1.7. To the best of the SELLERS'S knowledge (and they have
not made any investigation in such regard), there are no facts or events
that may substantially and unfavorably affect the COMPANY'S business and
they declare that they are rendering to the BUYER in this instrument and
in any Exhibits attached hereto all the information they know.
3.1.8. The SELLERS have been paid for all the rights and
credits that they may have had up to this date against the COMPANY and/or
the BUYER under any title and capacity, giving to the COMPANY and to the
BUYER full release regarding all such rights and credits.
3.1.9. To the best of SELLERS' knowledge (and they have not
made any investigation in such regard), none of the clients of the COMPANY
has expressed any intent to terminate or significantly alter their current
business relationship with the COMPANY, nor taken steps that may be
construed as indicative of such intent.
3.1.10. The SELLERS do not have any direct or indirect equity
interest (or option to acquire any direct or indirect equity interest) in
any of the COMPANY'S distributors or customers nor, to the best of their
knowledge (and they have not made any investigation in such regard), do
any of their immediate relatives.
4. REPRESENTATIONS AND WARRANTIES BY THE BUYER
4.1. The BUYER represents and warrants to the SELLERS, with the
intent that such representations and warranties shall form the basis of
this Agreement, the following:
4.1.1. The BUYER is a corporation duly qualified to do
business, and it has full corporate authority and power to own its
properties and to conduct its business.
4.1.2. The BUYER has full right and authority to execute and
deliver this Agreement and to consummate the specific transactions
contemplated herein.
4.1.3. This Agreement when duly executed and delivered by the
BUYER will constitute a valid and binding obligation of the BUYER
enforceable in accordance with its terms.
4.1.4. All actions of the directors or of the shareholders of
the BUYER, which may be required to authorize the transactions,
contemplated in this Agreement have been taken.
5. INDEMNIFICATION
5.1. The SELLERS hereby, jointly and severally, assume the full
responsibility and undertake to indemnify and keep the BUYER and the
COMPANY fully exempt from any encumbrance, expenses, losses, costs or any
other type of liability that the BUYER or the COMPANY may incur or may be
obliged to pay, by virtue of any infringement, inaccuracy or violation of
any representation, warranty or declaration made by the SELLERS in Chapter
3 hereunder.
5.2. If at any time the COMPANY and/or the BUYER is requested to
make any payment in connection with any liabilities provided for in Clause
5.1 above, the BUYER shall give prompt notice of the fact to the
SELLERS so that they may immediately thereafter choose to take one of the
following actions:
5.2.1. Undertake, at their own expense and risk, the defense
of the COMPANY and/or of the BUYER, as the case may be, for which purpose
the COMPANY shall grant the necessary powers to the counsel indicated by
the SELLERS, without prejudice to the COMPANY'S right to retain its own
counsel; and/or
5.2.2. Offer the necessary assets and/or guarantees as may be
determined by the administrative or judicial authorities; and/or
5.2.3. Determine that the BUYER shall conduct the defense of
the COMPANY and/or of the BUYER, provided that the SELLERS, in this case,
will make available to the COMPANY and/or to the BUYER the funds necessary
for settlement of the asserted claims and respective collateral costs.
5.3. In the event the SELLERS fail to give written notice of this
decision to the BUYER within 5 (five) business days following receipt of
the BUYER'S notice, then BUYER may take over the defense of the claim
provided, however, that the settlement or defense shall be made at the
expense of the SELLERS, who shall likewise bear the risks involved and
shall provide, in advance, the necessary assets and/or funds to meet any
and all costs involved.
5.4. The defense or other actions of the SELLERS taken in connection
with any claims of their responsibility may not, at any time, cause any
damage to the normal business operation or to the reputation of the
COMPANY and/or of the BUYER. Should any of these events occur, the COMPANY
and/or the BUYER may undertake the defense of the claim or other
appropriate action charging the SELLERS for all the costs incurred
thereto.
5.5. Any and all amounts due by the SELLERS as a result of the
liability undertaken by them in this Section 5 and which are paid by the
COMPANY and/or by the BUYER, shall be reimbursed by the SELLERS to the
COMPANY or to the BUYER, at BUYER'S discretion, within 5 (five) business
days following the respective disbursement, otherwise such amount shall be
adjusted for inflation in accordance with an index which effectively
reflects the loss of acquisition power of the Brazilian currency, pro rata
from the date of the payment up to the date of reimbursement, plus
interests of twelve percent (12%) per year.
6. DURATION OF THE WARRANTIES
6.1. The SELLERS' representations and warranties contained herein
shall survive the execution of this Agreement and the transfer of the
QUOTAS, and be valid until the expiration of the statute of limitations
applicable to each of the responsibilities guaranteed by the SELLERS.
7. NON COMPETITION, CONFIDENTIALITY, NO SOLICITATION, NO DISPARAGEMENT AND
OTHER OBLIGATIONS OF SELLERS
7.1. Each of the SELLERS hereby undertakes not to compete with the
COMPANY in South America for thirty (30) months as of this date, except in
the capacity of external lawyer or in house counsel (in the case of
▇▇▇▇▇▇▇) or independent or in house computer engineer consultant (in the
case of ▇▇▇▇▇▇▇), and provided that they, in such professional capacities,
shall not use and shall keep secret any and all information regarding
their ownership of the COMPANY'S shares and/or its sale to the BUYER, as
well as any and all other information they may have had access by virtue
of their position as partners of the COMPANY, without any prejudice to the
confidentiality obligations provided in 7.2 below.
7.2. The SELLERS acknowledge that the COMPANY'S Confidential
Information is valuable and proprietary to its operations and agree not
to, directly or indirectly, use, publish, disseminate, describe or
otherwise disclose any Confidential Information or developments of any of
the SELLERS or of the BUYER without the prior written consent of the
BUYER. For the purposes of this Agreement, "Confidential Information"
means all trade names, trademarks, service marks, patents and trade
secrets and any and all other information related to the activities of the
COMPANY not publicly available, such as, without limiting the generality
of the foregoing, identities of suppliers, customers and contractors;
product distribution information; pricing and compensation policies; sales
or financing procedures or methods; operational methods and processes;
technology; strategic plans; internal financial information; research and
development plans and activities; methodologies; technical specifications;
designs; computer software; marketing plans or strategies; accounts
management; and acquisition and expansion plans. The SELLERS recognize and
agree that all documents and objects containing any Confidential
Information will after this transaction become the exclusive property of
the COMPANY.
7.3. The SELLERS undertake, for a period of thirty (30) months
following this date, not to induce or try to induce any employee or person
connected with the COMPANY to leave his or her employment or fail to
render services to the COMPANY for any reason or for any purpose.
7.4. The SELLERS undertake not to disparage the COMPANY and/or the
BUYER and/or their products, operations, businesses, suppliers, customers,
distributors, employees, Officers henceforth for any reason and at any
time, and to always speak about them with respect and importance.
7.5. Considering that the BUYER has advised the SELLERS that the
BUYER would not purchase the QUOTAS unless the SELLERS agreed to the
covenant of Clauses 7.1 to 7.4 above, the violation, by any of the
SELLERS, of the provisions of said Clauses, shall subject the SELLERS
jointly and severally responsible for such violation to the payment of a
penalty to the BUYER equivalent to the value of US$500.00 (five hundred
thousand United States), per day while the breach of these obligations
persists, plus damages actually verified.
8. SUCCESSORS AND ASSIGNS
8.1. This Agreement shall be observed and shall produce effects for
all the parties hereto, their respective heirs, successors and assigns.
None of the parties may assign this Agreement, or any of the rights
derived there from, without the prior consent, in writing, of the other
parties, with the exception, however, that, nothing contained herein shall
prevent the BUYER from substituting for another company or companies
connected with the economic group to which it belongs.
9. EXPENSES
9.1. Each party to this Agreement shall pay all of its expenses
relating hereto, including fees and disbursements of its counsel,
accountants and financial consultants or advisors.
10. NOTICES
10.1. Any notification in connection with this Agreement shall be
made to the parties by personal delivery or by certified mail, to the
following addresses:
(a) to ▇▇▇▇▇▇▇:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ - ▇▇ - ▇▇▇▇▇▇
Zip Code 04532-001
(b) to ▇▇▇▇▇▇▇:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇ - ▇▇ - ▇▇▇▇▇▇
Zip Code 04532-000
(c) to the BUYER:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
At.: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President & Chief Executive Officer
With a copy to:
Demarest e ▇▇▇▇▇▇▇ Advogados
▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇.▇▇▇
▇▇▇ ▇▇▇▇▇ - ▇▇ - ▇▇▇▇▇▇
At.: ▇▇▇▇▇ ▇. ▇▇▇▇▇
11. ENTIRE AGREEMENT
11.1. This Agreement and the Exhibits attached hereto constitute the
entire agreement and understandings of the SELLERS and of the BUYER, and
all prior negotiations and understandings relating to the subject matter
of this Agreement are merged herein and are superseded and cancelled by
this Agreement.
12. LAW AND JURISDICTION
12.1. This Agreement shall be construed and governed by the laws of
the Federative Republic of Brazil. The Courts of the City of Sao Paulo,
State of Sao Paulo, are hereby elected to settle any disputes arising from
this Agreement, with the express waiver of any other, no matter how
privileged. In case of litigation, the losing party shall reimburse the
winning party for all legal expenses and for any and all amounts spent
with counsel. Besides that, in case BUYER is the defendant and wins the
lawsuit, SELLERS shall also reimburse BUYER for expenses with travel,
transportation and hotel fees, limited to the amount of US$2,500.00 (two
thousand and five hundred United States Dollars).
IN WITNESS WHEREOF, the parties hereto sign this instrument, in the
presence of two witnesses, as required by the law.
Sao Paulo, June 23, 2004. /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ De ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
/s/Paulo ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
BY HEMAGEN DIAGNOSTICS, INC.
WITNESSES:
1. /s/ Angonio ▇▇▇▇▇▇ ▇▇▇▇ 2. /s/ Joana ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
RG 26.407.007-0 SSP/SP RG 28.782.321-0 SSP/SP
NON-COMPETITION AGREEMENT
By this private instrument, entered into by and between:
On the one side:
HEMAGEN DIAGNOSTICS, INC., a company duly organized and existing under the
laws of Delaware, United States of America, with head offices in ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, herein
duly represented by its attorney-in-fact Mr. Paulo ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
(hereinafter referred to as "HEMAGEN US"); and
On the other side:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, Brazilian citizen, single, lawyer, resident
and domiciled in Sao Paulo, State of Sao Paulo, at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇, bearer of Identity Card RG no.
3.173.771 SSP/SP and Individual Taxpayer Card CPF/MF no. ▇▇▇.▇▇▇.▇▇▇-▇▇
SSP/SP (hereinafter referred to as "▇▇▇▇▇▇▇"); and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, Brazilian citizen, separated, engineer,
resident and domiciled in Sao Paulo, State of Sao Paulo, at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇, bearer of Identity Card RG
no. 6.325.753 SSP/SP and Individual Taxpayer Card CPF/MF no.
▇▇▇.▇▇▇.▇▇▇-▇▇ SSP/SP (hereinafter referred to as "▇▇▇▇▇▇▇")
(HEMAGEN US, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ hereinafter jointly referred to as
"Parties").
WHEREAS:
(i) HEMAGEN US is the controlling partner of HEMAGEN DIAGNOSTICOS
COMERCIO, IMPORTACAO E EXPORTACAO LTDA., a Brazilian company
with headquarters in the city of Sao Paulo, State of Sao
Paulo, at Rua ▇▇▇▇▇ ▇▇▇▇▇▇▇, 222, Pinheiros, enrolled with the
CNPJ/MF under no. 64.002.686/0001-32 (hereinafter referred to
as "HEMAGEN BRAZIL"), currently holding quotas representing
eighty-three point sixty-six percent (83.66%) of its capital
stock, as per the Quota Purchase Agreement executed as of this
date, whereby ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ have assigned and
transferred through a sale to HEMAGEN US all the quotas held
by them in HEMAGEN BRAZIL; and
(ii) As part of the negotiation relating to the purchase and sale
of ▇▇▇▇▇▇▇ and ROBERTO's quotas to HEMAGEN US, they have
agreed to execute this Non-Competition Agreement, according
with the following terms and conditions:
1. NON-COMPETITION
1.1. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ hereby undertake, for a period of 30
(thirty) months following this date, and unless otherwise authorized in
writing by HEMAGEN US, not to directly or indirectly participate in any
type of business in the same field of business of HEMAGEN BRAZIL, within
the territory of South America. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ shall be deemed
participating in such business and activities and, therefore, in violation
to the provisions hereunder, in case, inter alia, any of them own,
directly or indirectly, shares, quotas, rights or any financial interest
in any company, venture, association or other entity engaged in the
business or activities referred to above, or in case any of them maintain
an employment, consulting or similar relationship with such entity.
1.2. During the term of this agreement, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
undertake not to solicit or try to induce any of the employees or clients
of HEMAGEN BRAZIL to terminate or reduce their relationship with HEMAGEN
BRAZIL.
1.3. During the non-compete period mentioned above, ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ may act in the capacity of external lawyer or in house counsel (in
the case of ▇▇▇▇▇▇▇), or independent or in house computer engineer
consultant (in the case of ▇▇▇▇▇▇▇) and provided that they, in such
professional capacities, shall not use and shall keep secret any and all
information regarding their ownership of HEMAGEN BRAZIL's quotas and/or
its sale to HEMAGEN US, as well as any and all other information they may
have had access by virtue of their position as partners of HEMAGEN BRAZIL,
without any prejudice to their confidentiality obligations provided in
Clause 7.2 of the Quota Purchase Agreement executed as of this date.
2. COMPENSATION AND EXPENSES
2.1. In consideration for the obligations assumed by ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ under this Agreement, HEMAGEN US shall pay to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
the total amount of US$42,000.00 (forty two thousand United States
Dollars), as follows:
(a) US$22,000.00 (twenty two thousand United States Dollars)
will be paid to ▇▇▇▇▇▇▇ upon execution of this
Agreement; and
(b) US$20,000.00 (twenty thousand United States Dollars)
will be paid to ▇▇▇▇▇▇▇ upon execution of this
Agreement.
2.2. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ give BUYER full release regarding the
payment of the compensation herein provided.
2.3. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ shall be solely responsible for paying any
and all taxes due as a result of the receipt of the amounts referred to in
section 2.1 above.
3. TERM
3.1. This Agreement shall enter into effect on this date and remain
valid and in force for a period of thirty (30) months.
4. BREACH
4.1. The breach of any provision of this Agreement by ▇▇▇▇▇▇▇ and/or
▇▇▇▇▇▇▇ shall subject each of the violator to the payment of a penalty to
HEMAGEN US in the amount of US$500.00 (five hundred United States Dollars)
per day for as long as the breach persists, plus any losses and damages
actually incurred by HEMAGEN US. In the case of a breach by ▇▇▇▇▇▇▇ and/or
▇▇▇▇▇▇▇ of section 1.2 hereof, the parties agree that "losses and damages"
incurred by HEMAGEN US shall be the equivalent to five times the total
gross sales amount of the COMPANY during the prior fiscal year with regard
to the solicited client.
5. BINDING EFFECT
5.1. This Agreement constitutes the total understanding between the
Parties, and shall be binding upon the Parties and their respective
executors, administrators, successors, and assigns.
6. NON-WAIVER
6.1. No delay or failure by either Party in exercising any right
under this Agreement, and no partial or single exercise of that right,
shall constitute a waiver of that or any other right.
7. SEVERABILITY
7.1. In the event that any provision of this Agreement is found
invalid or unenforceable, the remainder
of this Agreement shall remain valid and enforceable according to its
terms.
8. ASSIGNABILITY
8.1. This Agreement and the rights and obligations hereunder are
personal with respect to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ and may not be assigned or
transferred to third parties.
9. CONFIDENTIALITY
9.1. The parties agree not to, directly or indirectly, disseminate
or otherwise disclose any of the terms and conditions of this transaction
and of this Agreement.
10. GOVERNING LAW
10.1. This Agreement shall be construed and governed by the laws of
the Federative Republic of Brazil. The Courts of the City of Sao Paulo,
State of Sao Paulo, are hereby elected to settle any disputes arising from
this Agreement, with the express waiver of any other, no matter how
privileged. In case of litigation, the losing party shall reimburse the
winning party for all legal expenses and for any and all amounts spent
with counsel. Besides that, in case HEMAGEN US is the defendant and wins
the lawsuit, ▇▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇, as the case may be, shall also
reimburse HEMAGEN US for expenses with travel, transportation and hotel
fees, limited to the amount of US$2,500.00 (two thousand and five hundred
United States Dollars). IN WITNESS WHEREOF the Parties execute this
instrument on four (4) counterparts, in the presence of two (2) witnesses.
Sao Paulo, June 23, 2004
/s/ Paulo ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
by. HEMAGEN DIAGOSTICS, INC.
Paulo ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attorney-in-fact
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ DE ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
WITNESSES:
1. /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Neto 2. /s/ Joana ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------- -------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Neto Name: Joana ▇▇▇▇▇ ▇▇▇▇▇▇▇
ID: RG 26.407.007-0 SSP/SP ID: RG 28.782.321-0 SSP/SP
