December 2, 1998
Personal and Confidential
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Xx. Xxxxxx Block
0, xxx xx xx Xxxx x'Xxxx
67100 Strasbourg
Dear Pierre:
Further to our discussions, we are writing the present letter
to confirm the amendments and/or clarifications which we agreed with you to
make to the Stock Purchase Agreement (the "Stock Purchase Agreement"), dated
November 9, 1998, among Xxxxxx Scientific International Inc. ("Xxxxxx"), Xxxxxx
Scientific Holdings France S.A. (the "Buyer"), you, other members of your family
and various holding companies as "Sellers" and "Sellers' Guarantors", concerning
our purchase of your family's interest in Bioblock Scientific S.A. ("Bioblock")
and its subsidiaries (the "Subsidiaries"). We therefore hereby request that you
countersign and return the enclosed copy of this letter to confirm, on behalf of
the Sellers and Sellers' Guarantors, your agreement on the matters set forth
below. Except as otherwise indicated, defined terms are used in this amendment
letter agreement with the same meaning as in the Stock Purchase Agreement.
1. In accordance with the Sellers' wish, and in particular with your own, Xxxxxx
and the Buyer undertake to offer to the minority shareholders a price per share
of FrF 415, which is the price per share which will be paid to the Sellers
pursuant to the Stock Purchase Agreement. Thus, Xxxxxx and the Buyer renounce to
the possibility to offer, during the garantie de cours procedure which will be
implemented after the Closing, any lower price which could have been agreed in
the meantime with the CMF.
2. To better reflect the pre-existing business relationships, Novodirect Sarl
("Novodirect") will become a direct subsidiary of Bioblock, rather than a
subsidiary of the Buyer, as contemplated by the form of Promise of Purchase and
Sale of Quota Shares which is set forth in Annex 2 of Annex 7C of the Stock
Purchase Agreement. Furthermore, the acquisition of the Novodirect quota shares
held by your family will occur on December 2, 1998, at the time of the
Pre-Realization, at the same time as the Buyer places in escrow the Share
Purchase Price as contemplated by Section 1.2(d) of the Stock Purchase
Agreement. By mutual agreement, the form of the agreement to be used to document
the transfer of the Novodirect quota shares held by your family has been
modified to reflect these changes, and is attached as Annex 1 to this amendment
letter agreement. In addition, you and we agreed to base the purchase price of
these Novodirect quota shares on the net book value of Novodirect as of November
30, 1998 (rather than as of the actual date of transfer of the Novodirect quota
shares).
3. It has also been agreed that the following actions will also occur at the
time of the Pre-Closing: (a) the purchase by Bioblock from yourself of the quota
shares representing 7.66% of the capital of Avantec Sarl ("Avantec"), (b) the
purchase by Avantec from yourself of the Avantec trademarks pursuant to the
Contract for the Transfer of Trademarks in the form set forth as Annex 7A to the
Stock Purchase Agreement; (c) the purchase by Bioblock from yourself of the
Novodirect trademarks and of twelve other trademarks, pursuant to the Contracts
for the Transfer of Trademarks in the form set forth as Annexes 7C and 7B,
respectively, to the Stock Purchase Agreement and (d) the purchase by Bioblock
from Xxxx-Xxxxxxxxx Block-Derriey of four trademarks and one trademark
registration application, pursuant to the Contract for the Transfer of
Trademarks in the form set forth as Annex 7D to the Stock Purchase Agreement.
(It is understood that the forms of the Contracts for the Transfer of Trademarks
set forth in Annexes 7B and 7D shall be modified to reflect accurately the
persons who are the registered owners of the trademarks in question.)
4. It is understood and agreed that, when determining the amount of Net Excess
Cash for purposes of Section 1.1(b) and 1.2(c)(v) of the Stock Purchase
Agreement, (a) the amounts paid by Bioblock and by Avantec to purchase the quota
shares of Novodirect and Avantec as well as the trademarks and trademark
registration requests, as contemplated by Sections 1 and 2 above, shall be
considered as cash still in the possession of Bioblock and Avantec on the
Closing Date; and (b) the cash and short-term investment securities held by
Novodirect shall remain excluded from the calculation on a consolidated basis of
the cash and short-term investment securities of Bioblock and its Subsidiaries.
5. To permit these transactions to occur at the Closing, it has been agreed that
you will arrange for (a) the owners of the quota shares of Novodirect to agree
to the purchase by Bioblock of the quota shares of Novodirect and to approve
Bioblock as a new quotaholder; and (b) the approval by the Board of Directors of
Bioblock, pursuant to the requirements of Section 101 of the Law 66-537 of July
24, 1966 on Commercial Companies, of Bioblock's acquisition of the quota shares
of Novodirect, of the quota shares representing 7.66% of the capital of Avantec
Sarl and of the trademarks and trademark registration requests, as described
above. You will also arrange for the amounts to be paid by Bioblock for these
quota shares, trademarks and trademark registration requests to be reviewed and
approved by an independent expert, and which shall be deemed acceptable by the
Board of Directors of Bioblock.
6. We have not yet had the opportunity to review the services provided to
Bioblock, its Subsidiaries and Novodirect by Fina 3 S.A. ("Fina 3"), but it is
possible that all or part of these services may no longer be needed by those
companies once the transition period has been completed and those companies are
fully integrated in the Xxxxxx Scientific group. We have thus agreed with you
that, immediately upon your receipt of a request to this effect from Xxxxxx, you
shall take all steps necessary to terminate all or the relevant portions of the
service agreements between those companies and Fina 3, with no termination
indemnities or other amounts being due by Bioblock, its Subsidiaries and
Novodirect as a result of such termination.
7. Except as otherwise expressly stated in this letter agreement, the terms and
conditions set forth in the Stock Purchase Agreement shall remain in full force
and effect.
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8. This letter agreement hereby incorporates by reference Sections 7.2
(Governing Law), 7.3 (Arbitration), 7.4 (Amendments), 7.5 (Assignment), 7.6
(Notices), 7.7 (Expenses), 7.8 (Severability) and 7.10 (Languages) of the Stock
Purchase Agreement, as if such Sections had been incorporated herein and made a
part hereof.
Kindly countersign and return to us the enclosed copy of this letter
agreement, whereupon it shall come into effect as an amendment to the Stock
Purchase Agreement.
Sincerely yours,
XXXXXX SCIENTIFIC INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name:Xxxxxxx X. Xxxxxxxx
Duly authorized pursuant to the attached
power of attorney from Xx. Xxxx. X.
XxXxxxx
Agreed on behalf of
the Sellers and
Sellers' Guarantors:
/s/ Pierre Block
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Pierre Block
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