TRANSLATION FROM FRENCH FOR INFORMATION ONLY
EXHIBIT 2.2
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AMENDMENT TO THE SHARE PURCHASE AGREEMENT
MADE 3 DECEMBER 2001 AMONG THE PERSONS INDICATED BELOW
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AMONG THE UNDERSIGNED:
Monsieur Xxxxxxxx Xxxxx, an individual born in Paris, on 7 October 1944,
residing at 00, xxxxxx Xxxx - 00000 Xxxxx, Xxxxxx,
Xx. Xxxxxx Xxxxxxxxxx, widow (VEUVE) of Xx. Xxxxx Xxxxx, an individual born
in Hanoi (Vietnam), on 15 April 1918, residing at 0, xxx xx x'Xxxxxx - 00000
Xxxxx, thereunto duly represented by Xx. Xxxxxxxx Xxxxx,
Hereinafter together called the "Sellers"
ON THE ONE HAND,
AND:
Cephalon France Holdings, a simplified stock corporation (SOCIETE PAR ACTIONS
SIMPLIFIEE) whose registration number with the Registry of Commerce and
Companies (REGISTRE DU COMMERCE ET DES SOCIETES) is in the process of being
obtained and the registered office of which is located at 00, xxx xxx Xxxxxxxxx
- 00000 Xxxxx, herein represented by Xx. Xxxxxxxx Xxxxx, thereunto duly
authorized by a power-of-attorney given by Xx. Xxxxxx Xxxxxxxxx, acting in his
capacity as President, himself thereunto duly authorized,
Hereinafter called "Cephalon France Holdings",
ON THE OTHER HAND,
Hereinafter together called the "Parties".
RECITALS:
A. Under a Share Purchase Agreement signed on 3 December 2001 by the Sellers
and Cephalon, Inc., an American corporation registered in Delaware, the
principal place of business of which is located at 000 Xxxxxxxxxx Xxxxxxx,
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000, Xxxxxx Xxxxxx (hereinafter called
"Cephalon, Inc."), (hereinafter called the "Agreement"), the Sellers agreed
to sell to Cephalon, Inc., which agreed to acquire under the terms and
conditions of the Agreement, all of the shares of Financiere Xxxxx, a
French corporation (SOCIETE ANONYME) with registered capital of forty
thousand Euros (Euro 40,000), having its registered office located at 00,
xxx Xxxxxxx Xxxxx - 00000 Xxxxx, registered with the Registry of Commerce
and Companies (REGISTRE DU
COMMERCE ET DES SOCIETES) of Paris under number 340 102 391, and at least
2,556 shares of Organisation de Synthese Mondiale Orsymonde, a French
corporation (SOCIETE ANONYME) with registered capital of one million eight
hundred thirty-six thousand Euros (Euro 1,836,000), having its registered
office located at 00, xxx Xxxxxxx Xxxxx - 00000 Xxxxx, registered with the
Registry of Commerce and Companies (REGISTRE DU COMMERCE ET DES SOCIETES)
of Paris under number 582 079 711, such sale to occur on the Closing Date
(as defined in Article 4 of the Agreement).
B. Capitalized terms used herein and which are not otherwise defined herein
shall have the definitions assigned to them in the Agreement.
C. Under Article 7(c) of the Agreement, Cephalon, Inc., exercised its right of
substitution set forth in such Article, which, among other things, resulted
in the substitution of Cephalon France Holdings under the terms and
conditions of the Agreement.
D. The Parties wish, simultaneously with the Closing, to enter into an
amendment to the Agreement to specify certain of their obligations as set
forth in the Agreement. Such amendment is set forth herein.
NOW, THEREFORE, THE PARTIES HERETO HEREBY AGREE AS FOLLOWS:
1. ASSETS TO BE SOLD OR ACQUIRED BY THE COMPANIES
(a) As set forth in the Agreement, Xx. Xxxxxxxx Xxxxx acquired from Orsymonde
and Laboratoire X. Xxxxx, following signature of the Agreement, the
personal property listed in Exhibit 5(b) to the Agreement for the prices
set forth in such Exhibit.
Xx. Xxxxxxxx Xxxxx also acquired from Orsymonde and Laboratoire X. Xxxxx,
following signature of the Agreement and with the consent of Cephalon
France Holdings, the assets set forth in Exhibit 1(a) hereto, at the prices
set forth in such Exhibit.
(b) As Xx. Xxxxxxxx Xxxxx has expressed the desire to acquire from Orsymonde an
eighteenth century Aubusson tapestry called "JEU DE XXXXXX XXXXXXXX", owned
by such company, Cephalon France Holdings agrees that Orsymonde will sell
such asset as soon as possible to Xx. Xxxxxxxx Xxxxx. For such purpose, Xx.
Xxxxxxxx Xxxxx and Orsymonde will negotiate to agree in good faith on the
price for which such tapestry will be sold, which will be on the basis of
the valuation made by a third party chosen by Xx. Xxxxxxxx Xxxxx and
Orsymonde, or such other price as may be agreed by the parties involved.
(c) It is hereby specified that, as set forth in the terms and conditions of
the Agreement, the real estate assets described in Exhibit 5(b) of the
Agreement I.E.:
- an apartment located in the building known as "Ours Blanc", Le
Belvedere, Meribel les Allues, belonging to SCI Martigny;
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- a lot and the rights relating thereto, formerly covered by a building
lease made between Laboratoire X. Xxxxx and Xx. Xxxxx Xxxxx on 14 May
1978, located in Marseillan, belonging to Xx. Xxxxxx Xxxxx,
have become the subject of purchase and sale undertaking agreements, as
follows:
(i) a purchase undertaking agreement (UNE PROMESSE D'ACHAT) made between
Xx. Xxxxxxxx Xxxxx and SCI Martigny under which Xx. Xxxxxxxx Xxxxx
has agreed to acquire from SCI Martigny for a price of 8,000,000
French Francs, the building described hereinabove located in Meribel
les Allues;
(ii) a sale undertaking agreement (UNE PROMESSE DE VENTE) made between Xx.
Xxxxxx Xxxxx and Laboratoire X. Xxxxx under which Xx. Xxxxxx Xxxxx has
agreed to sell to Laboratoire X. Xxxxx for a price of 3,250,000 French
Francs the lot described hereinabove located in Marseillan and the
rights relating thereto.
Cephalon France Holdings shall cause Laboratoire X. Xxxxx and SCI Martigny
promptly to execute before a notary the purchase and sale deeds
contemplated by the undertaking agreements hereinabove described.
Until the date of such execution, Xx. Xxxxxx Xxxxx agrees that Laboratoire
X. Xxxxx shall have the right to continue using the building located in
Marseillan, and Cephalon France Holdings agrees that Xx. Xxxxxxxx Xxxxx may
continue to use, on a personal basis, the building located in Meribel les
Allues.
2. INDIVIDUAL RETAINING A BUSINESS RELATIONSHIP WITH XX. XXXXXXXX XXXXX AFTER
SIGNATURE HEREOF
Xx. Xxxxxxxx xx Xxxxxx, presently employed by Orsymonde, shall be added to
the list set forth in Exhibit 5(h) of the Agreement.
3. POSSESSION BY XX. XXXXXXXX XXXXX OF THE OFFICES LOCATED AT 12, RUE XXXXXXX
XXXXX IN PARIS
Xx. Xxxxxxxx Xxxxx has advised Cephalon France Holdings of his desire to
continue using the offices located at 00, xxx Xxxxxxx Xxxxx - 00000 Xxxxx
(hereinafter called the "Offices"), of which Orsymonde and Financiere Xxxxx
have actual possession, respectively, under (i) a commercial lease made on
17 July 2000 between Orsymonde and Ugil S.A. and Saggel Gestion and (ii) a
sublease agreement made between Orsymonde and Financiere Xxxxx on 19 June
2000.
Cephalon France Holdings has given its consent to the foregoing, provided,
however, that it desires that Orsymonde and Financiere Xxxxx may continue
to be located in the Offices and have possession of a portion thereof,
during the time required to change their registered office and transfer
their employees presently located in the Offices.
For this purpose, Orsymonde and Xx. Xxxxxxxx Xxxxx shall promptly negotiate
in good faith the legal terms and conditions to transfer to Xx. Xxxxxxxx
Xxxxx (or any other person designated by him) the lease relating to the
Offices, or to agree to any other solution allowing Xx. Xxxxxxxx Xxxxx to
use the offices on a personal basis. In any event, the solution agreed
shall take into consideration the constraints described above relating to
the transfer of Financiere Xxxxx'x and Orsymonde's registered offices and
their employees.
It is understood and agreed that, until the date the lease relating to the
Offices is transferred or any other solution agreed by the parties involved
is implemented, Xx. Xxxxxxxx Xxxxx may continue
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using his office in the Offices on a personal basis, Cephalon France
Holdings agreeing to cause Orsymonde to enter into all of the agreements
required for the foregoing.
4. ENVIRONMENTAL REPORTS
As provided by Article 5(g) of the Agreement, Cephalon France Holdings has
delivered to the Sellers, on the date hereof, one or more Environmental
Reports relating to the matters set forth in clauses (i), (ii), (iv), (v),
and (vi) of such Article 5(g), subject to the following:
(a) The Environmental Report relating to the matter described in clause (iii)
of Article 5(g) (type of pollution and/or contamination related to coffee
business conducted by preceding users at 5 avenue Xxxxxxx Martigny in
Maisons Alfort) shall be delivered by Cephalon France Holdings to the
Sellers no later than 31 January 2002.
(b) However, and in the event it should appear, following the date hereof, that
the problem described in clause (i) of Article 5(g) of the Agreement (type
of pollution and/or contamination by fuel detected in the ground, premises,
or facilities located on the site of the offices at 20, xxx Xxxxxxx
Martigny in Maisons-Alfort) may have caused a personal injury to one or
more of the authorized person(s) working at the offices located at 00, xxx
Xxxxxxx Xxxxxxxx, the Sellers agree that Cephalon France Holdings shall
deliver, no later than 31 January 2002 a supplemental Environmental Report
relating to the personal injury suffered by such persons
(c) The other provisions of Article 5(g) of the Agreement shall apply MUTATIS
MUTANDIS to the Environmental Report described in paragraph (a) hereinabove
and to the supplemental Environmental Report described in paragraph (b)
hereinabove.
5. BONUSES AND INDEMNITIES PAID TO XX. XXXXXXX
A performance bonus of 1,510,000 French Francs has been paid to Xx. Xxxxxxx
by the Companies with respect to the year 2000 (the "2000 Bonus").
It is hereby agreed that, pursuant to Article 6.1 of the Agreement, (i) the
difference between the 2000 Bonus and the amount of the performance bonus
which is to be paid to Xx. Xxxxxxx for the year 2001, (ii) any dismissal
indemnity under the applicable collective bargaining agreement which may be
paid by the Companies to Xx. Xxxxxxx, (iii) any termination settlement
indemnity which may be paid by the Companies to Xx. Xxxxxxx, as well as,
more generally, (iv) any bonus, indemnity, or damages which may be paid by
the Companies to Xx. Xxxxxxx, shall be eliminated in preparing the Closing
Financial Statements.
6. PWC OPINIONS
If PWC is unable to deliver to the Purchaser and the Seller the opinions
set forth in Article 4(f) of the Agreement, the Parties agree to complete
the Closing without delivery of such opinions, on the condition that Xx.
Xxxxxxxx Xxxxx, in his capacity as the Company's President, deliver to PWC
at the Closing confirmation letters relating to the Companies' consolidated
accounts as of 30 September 2000 and 2001 and as of 31 December 1998, 1999,
and 2000, as provided in the forms dated as of 26 December 2001.
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7. MISCELLANEOUS
All other provisions of the Agreement shall remain unchanged.
Made in Paris,
On 28 December 2001,
in three (3) originals
Cephalon France Holdings
/s/ Xxxxxxxx Xxxxx /s/ Xxxxxxxx Xxxxx
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By: Xx. Xxxxxxxx Xxxxx Xx. Xxxxxxxx Xxxxx
/s/ Xxxxxxxx Xxxxx
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Xx. Xxxxxx Xxxxxxxxxx
Widow of Xx. Xxxxx Xxxxx
By: Xx. Xxxxxxxx Xxxxx
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