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EXHIBIT 2.2
SETTLEMENT AGREEMENT
1a. The company EUROMED. INC., incorporated under the laws of Nevada,
United States of America, duly represented by one of its board
members, E.G. ▇▇▇▇▇▇▇, hereinafter to be referred as: "EuroMed,
Inc.";
1b. The private limited liability company EUROMED EUROPE B.V.,
incorporated under the laws of The Netherlands, duly represented by
one of its statutory directors, EuroMed, Inc., hereinafter to be
referred as: "EuroMed B.V.";
1c. The private limited liability company MUTARESTES B.V., incorporated
under the laws of The Netherlands, duly represented by its statutory
director, B.V. Wisteria, duly represented by its statutory director
Pantapharma B.V., hereinafter to be referred as: "Mutarestes";
1d. The private limited liability company GALENICA B.V., incorporated
under the laws of The Netherlands, duly represented by its statutory
director EuroMed Europe B.V., hereinafter to be referred as:
"Galenica";
1e. The private limited liability company CONFEDERA B.V., incorporated
under the laws of The Netherlands, duly represented by its statutory
director, EuroMed Europe B.V., hereinafter to be referred as:
"Confedera";
1f. The private limited liability company PLURIPHARM INTERNATIONAL B.V.,
incorporated under the laws of The Netherlands, duly represented by
its statutory director Wisteria, hereinafter to be referred as:
"Pluripharm";
AND
2a. The private limited liability company PANTAPHARMA B.V., incorporated
under the laws of The Netherlands, duly represented by its statutory
director, ▇.▇. ▇▇▇▇▇▇, hereinafter to be referred as: "Pantapharma";
2b. The private limited liability company B.V. WISTERIA, incorporated
under the laws of The Netherlands, duly represented by its statutory
director Pantapharma, hereinafter to be referred as: "Wisteria";
2c. ADRIAAN ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, residing at Velp (Gld), The Netherlands,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ (6881 AG), hereinafter to be referred as:
"▇▇▇▇▇▇";
Parties la. up to and including lf. will be collectively referred to as: "the
EuroMed-group";
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WHEREAS:
a. EuroMed, Inc., owns all of the issued and outstanding shares of
EuroMed B.V.;
b. EuroMed B.V. holds all of the issued and outstanding shares in the
capital of Mutarestes, which in turn owns all of the issued and
outstanding shares of Pluripharm;
c. EuroMed B.V. holds also all of the issued and outstanding shares in
the capital of Galenica and Confedera;
d. Pantapharma is the statutory director of Wisteria, which latter
company is a major shareholder in EuroMed, Inc. and holds 1,850,000
shares (of which 1,000,000 are legally owned by Wisteria);
▇. ▇▇▇▇▇▇, Wisteria and Pantapharma have entered into three management
agreements with the EuroMed-group which were signed on October 12,
1995 (2x) and July 5, 1996 (lx), (hereinafter: "the Management
Agreements"), whereby Wisteria was appointed as manager for EuroMed
B.V., Mutarestes, Pluripharm and Galenica and whereby Pantapharma was
appointed as manager for Confedera. In addition, ▇▇▇▇▇▇ was appointed
as board member of EuroMed, Inc. in July 1996;
f. The Parties have made certain claims against each other and have
agreed to settle their differences on the terms contained in the
agreement (hereinafter: "the Agreement");
THE PARTIES HEREBY AGREE AS FOLLOWS:
ARTICLE 1 RETURN OF THE 1,850,000 EUROMED, INC. SHARES
1.1 Subject to the terms and conditions contained herein Wisteria agrees
to return for the benefit of EuroMed, Inc. the 1,850,000 EuroMed,
Inc. Shares to EuroMed, Inc. and EuroMed, Inc. accepts the 1,850,000
EuroMed, Inc. Shares from Wisteria. Wisteria agrees to return the
1,850,000 EuroMed, Inc. Shares to EuroMed, Inc. in consideration of
receiving full and final release from the EuroMed-group as defined in
Article 3 hereof.
1.2 The return of the 1,850,000 EuroMed, Inc. Shares will be effected by
handing over the original certificate by Wisteria to Mr. N.B.L.
Taaselaar, civil law notary, until (i) the joint declaration as
mentioned in Article 5.2 hereof has been furnished, (ii) the
resolutions mentioned in Article 6.4 hereof have been furnished and
(iii) all conditions mentioned in Article 7 hereof have beef
fulfilled.
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ARTICLE 2 REPRESENTATIONS AND WARRANTIES
2.1 Each member of the EuroMed-group represents and warrants that EuroMed,
Inc. has full corporate power and authority to execute and perform the
Agreement and the transactions contemplated thereby in accordance with
their terms.
2.2 At or prior to the signing of the Agreement, each member of the
EuroMed-group represents and warrants that the execution and the
performance of the Agreement and the transactions contemplated thereby
have been duly authorized by all necessary corporate actions on the
part of EuroMed, Inc.
2.3 At or prior to the signing of the Agreement, each member of the
EuroMed-group represents and warrants that no consent, authorization,
approval of the United States Securities and Exchange Commission,
Federal Trade Commission or any other law of the United States of
America or any State "Blue Sky Law" is required on behalf of EuroMed,
Inc. in connection with the execution and performance of the Agreement
and the transactions contemplated thereby.
ARTICLE 3 INDEMNIFICATION AND WAIVER OF CLAIMS
3.1 Each member of the EuroMed-group will indemnify, defend and hold
▇▇▇▇▇▇, Wisteria, Pantapharma and their employees, agents, attorneys
and affiliates harmless from and against any and all losses, claims,
causes of action, obligations, demands, assessments, penalties,
liabilities, costs, damages, attorneys' fees and expenses, asserted
against or incurred by third parties (such as, but not limited to
shareholders and creditors of EuroMed, Inc.) by reason of or resulting
from: (a) any claim arising from this Agreement and/or any other
agreement executed in connection with this transaction contemplated
hereby and/or (b) any claim arising from the Share Purchase Agreement
(regarding the shares of Mutarestes B.V.) dated July 5, 1996 and the
Asset and Liabilities Transfer Agreement (regarding the assets of
Mutarestes B.V.) dated March 3, 1997, the Management Agreements and/or
the activities and duties performed by ▇▇▇▇▇▇, Wisteria and/or
Pantapharma, except for claims (i) arising from the unlawful action or
omission for which ▇▇▇▇▇▇, Wisteria and/or Pantapharma may be blamed
personally ("verwijtbaar onrechtmatig handelen of nalaten").
3.2 Each member of the EuroMed-group hereby fully releases ▇▇▇▇▇▇,
Wisteria, Pantapharma and their employees, agents, officers,
directors, attorneys and affiliates and waives its rights to claim
inter alia damages and on the same basis ▇▇▇▇▇▇, Wisteria and
Pantapharma hereby fully release each member of the EuroMed-group and
their employees, agents, officers, directors, attorneys and affiliates
and waives their right to claim inter alia damages with respect to any
claim, such as, but not limited to any claim (i) resulting from this
Agreement or (ii) resulting from the Management Agreements and/or the
activities and duties performed by ▇▇▇▇▇▇, Wisteria and/or Pantapharma
or (iii) resulting from any event in connection with the financial
position of the EuroMed- group, the delisting of the Nasdaq or any
other event which
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occurred as of July 5, 1996 or (iv) resulting from any event, act or
omission by ▇▇▇▇▇▇, Wisteria and Pantapharma with respect to the
EuroMed-group and in their possible capacity as member of the Board of
Directors of EuroMed, Inc., EuroMed B.V., Confedera, Galenica,
Mutarestes and/or Pluripharm.
3.3 Each member of the EuroMed-group represents and warrants that it has
not assigned or transferred any of the claims mentioned in Article 3
hereof to any third party.
On the same basis ▇▇▇▇▇▇, Wisteria and Pantapharma represent and
warrant that they have not assigned or transferred any of the claims
mentioned in Article 3 hereof to any third party.
3.4 It is explicitly understood that the settlement of disputes and the
releases as mentioned in this article is considered to be a settlement
agreement as meant by Article 7:900 of the Dutch Civil Code as of the
date the certificates are handed over to EuroMed, Inc. as provided in
Article 1.2.
ARTICLE 4 TREATMENT OF CLAIMS
4.1 In case ▇▇▇▇▇▇ and/or Wisteria and/or Pantapharma will be sued by a
third party concerning an event for which the indemnification of
Article 3 applies, EuroMed, Inc. will deal diligently with this claim
on behalf of the abovementioned persons and legal entities as "dominus
litis."
4.2 EuroMed, Inc. will inform ▇▇▇▇▇▇, Wisteria and Pantapharma fully and
quickly about the pending claim and will furnish copies of all
documents concerning the claim to ▇▇▇▇▇▇, Wisteria and/or Pantapharma.
4.3 The costs for and arising from any legal proceeding or settlement with
respect to such claim will be for the account of EuroMed, Inc.
4.4 ▇▇▇▇▇▇ and Wisteria may appoint a counsel who may interfere with the
legal proceedings and/or negotiations on their behalf and on behalf of
▇▇▇▇▇▇, Wisteria and/or Pantapharma. The costs for this counsel will
be for the account of ▇▇▇▇▇▇ and Wisteria.
4.5 ▇▇▇▇▇▇ and Wisteria will not give any support (unless required by law)
to third parties who have the intention to file a claim against the
EuroMed-group with respect to the agreements and actions mentioned in
Article 3.1 under a and b. The EuroMed-group will not give any
support (unless required by law) to third parties who have the
intention to file a claim against ▇▇▇▇▇▇, Wisteria and/or Pantapharma
with respect to the agreements and actions mentioned in Article 3.1
under a and b.
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ARTICLE 5 CONFIDENTIALITY
5.1 Each party shall keep the terms of the Agreement confidential, and
shall make no press release or public disclosures, either written or
oral, regarding the transactions contemplated by the Agreement without
the prior knowledge and consent of the other parties hereto; provided
that the foregoing shall not prohibit any disclosure (i) by press
release or filing that is required by law (such as United States
securities laws), copies of which shall be made available to ▇▇▇▇▇▇,
Wisteria and Pantapharma, (ii) to advisors, financiers or lenders of
any party and (iii) to the Shareholders meeting of EuroMed, Inc.
5.2 Parties will jointly agree on a text for a press release and on filing
with the SEC, announcing the resignation of ▇▇▇▇▇▇ and Wisteria as
directors of the EuroMed-group as agreed in this Settlement Agreement
and the sale of (part of) the companies of the EuroMed-group to
Rijkeboer/Neopharm. No interviews or other press releases will be
made by any of the parties. This joint declaration will be the only
publication (verbal or written) made by the parties regarding this
transaction. This joint declaration will be deposited with the civil
law notary mentioned in Article 1.2 hereof and be released when all
the conditions mentioned in Article 1.2 have been fulfilled.
ARTICLE 6 MANAGEMENT AGREEMENTS AND RELEASE
6.1 EuroMed B.V. confirms hereby the resignation of ▇▇▇▇▇▇, Wisteria and
Pantapharma as managers in accordance with the Management Agreements
as of the date that the original certificate mentioned in Article 1.2
is handed over by Wisteria to the civil law notary and all conditions
mentioned all conditions mentioned in Article 1.2 have been fulfilled.
6.2 EuroMed, Inc. confirms hereby the resignation of ▇▇▇▇▇▇ as member of
the Board of Directors of EuroMed, Inc. as per the date that the
original certificate mentioned in Article 1.2 is handed over by
Wisteria to the civil law notary and all conditions mentioned in
Article 1.2 have been fulfilled.
6.3 The EuroMed-group as of the date of termination of the Management
Agreements and the date of resignation of ▇▇▇▇▇▇ as member of the
Board of Directors of EuroMed, Inc., acknowledges that ▇▇▇▇▇▇,
Wisteria and Pantapharma will be released from any liabilities and
will be fully discharged with respect to their position as managers.
It is agreed that the non-competition clauses of the Management
Agreements cannot be enforced against ▇▇▇▇▇▇, Wisteria and
Pantapharma. However, ▇▇▇▇▇▇, Wisteria and Pantapharma agree that
they are not allowed, directly or indirectly, to be active in the
field of wholesale of pharmaceutical products in the Netherlands for a
period of two years upon signing this agreement.
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6.4 Each respective company in the EuroMed-group will pass on the date
mentioned in Article 6.1 hereof a shareholders resolution in which the
relevant company and/or Pantapharma (i) confirms the resignation of
▇▇▇▇▇▇ and/or Wisteria as board member and/or statutory directors as
per the date mentioned in Article 6.1 hereof and (ii) provides a
general release of ▇▇▇▇▇▇, Wisteria and/or Pantapharma from any and
all liabilities and fully discharges them with respect to their
position as board member and/or statutory directors.
6.5 Each respective company in the EuroMed-group further declares that the
relevant company will release ▇▇▇▇▇▇, Wisteria and/or Pantapharma,
from any and all liabilities and fully discharges them with respect to
any amounts due (in current account, in connection with the Management
Agreements, or otherwise) by ▇▇▇▇▇▇, Wisteria and/or Pantapharma (or
Cofa Beheer B.V. or Hybrida B.V. as the case may be) to such company.
6.6 ▇▇▇▇▇▇, Wisteria and Pantapharma declare to release each respective
company in the EuroMed-group from any and all liabilities and fully
discharges them with respect to any amounts due (in current account or
in connection with the Management Agreements, or otherwise) by the
relevant company to ▇▇▇▇▇▇, Wisteria and/or Pantapharma.
ARTICLE 7 FURTHER COVENANTS
7.1 EuroMed Europe B.V. shall transfer legal title of 51% of the shares it
presently owns in the share capital of Confedera Philippines Inc. to
▇▇▇▇▇▇ or to a legal entity in accordance with his instructions. In
order to implement this transfer of shares, EuroMed Europe B.V. hereby
transfers - to the extent possible under the laws of the Philippines -
said shares to ▇▇▇▇▇▇, who accepts, to the extent possible under the
laws of the Philippines, this transfer. EuroMed Europe B.V. herewith
grants full power of attorney to ▇▇▇▇▇▇ in order to sign every
document and to perform any and all acts that may be necessary or
useful in order to effectuate the transfer of legal title of the
Confedera Philippines Inc. to ▇▇▇▇▇▇ according to the applicable laws
of the Philippines.
7.2 Confedera B.V. shall transfer ownership of the car presently used by
▇▇▇▇▇▇ (audi 100, with number ▇▇-▇▇-72) to ▇▇▇▇▇▇ or to a legal entity
in accordance with his instructions.
7.3 EuroMed, Inc. will furnish evidence of board approval of EuroMed, Inc.
to enter into this Settlement Agreement, in the form of a signed copy
of the minutes of the relevant board meeting. EuroMed, Inc. will
furnish this evidence of board approval to the civil law notary
mentioned in Article 1.2 hereof.
7.4 Confedera B.V. shall transfer ownership of the personal computer
presently used by ▇▇▇▇▇▇ to ▇▇▇▇▇▇ or to a legal entity in accordance
with his instructions.
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7.5 ▇▇▇▇▇▇, Wisteria and Panthapharma shall return all documents, keys,
assets, and or other items owed by or belonging to EuroMed-group to
the relevant company of the EuroMed-group.
ARTICLE 8 CHOICE OF LAWS
8.1 The Agreement and the rights and obligations of the parties hereto are
governed by and construed and enforced in accordance with the laws of
The Netherlands. Any dispute arising under the Agreement shall be
exclusively settled by the competent Court of Amsterdam, The
Netherlands.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
today 27 November 1997.
/S/ E. ▇▇▇▇ ▇▇▇▇▇▇▇ /S/ E. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------- --------------------------------------
EuroMed, Inc. EuroMed Europe B.V.
/S/ E. ▇▇▇▇ ▇▇▇▇▇▇▇, /S/ ▇. ▇. ▇▇▇▇▇▇ /S/ E. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------- --------------------------------------
Mutarestes B.V. Galenica B.V.
/S/ E. ▇▇▇▇ ▇▇▇▇▇▇▇ /S/ ▇. ▇. ▇▇▇▇▇▇
------------------------------------- --------------------------------------
Confedera B.V. A. F. ▇▇▇▇▇▇
/S/ ▇. ▇. ▇▇▇▇▇▇ /S/ ▇. ▇. ▇▇▇▇▇▇
------------------------------------- --------------------------------------
Pantapharma B.V. B. V. Wisteria
/S/ E. ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Pluripharm International B.V.
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