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EXHIBIT 10.10
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into this fifth day of September
1997,
By:
INTEGRATED SURGICAL SYSTEMS, Inc., a company registered under the laws of
Delaware, United States of America, having its headquarters at 000, Xxxx Xxxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxxxx, 00000, Xxxxxx Xxxxxx of America, represented by
its President and Chief Executive Officer, Xx. Xxxxxx Xxxxxxx (hereinafter the
"Buyer"),
on the one hand,
And:
- Xxx. Xxxxxxx XXXXX, a French citizen, residing at Xxxxxx xxx Xxxxx, 00000
Xxxxx Xxxxxx, Xxxxxx,
- Xx. Xxxxxxxx XXXXX, a French citizen, residing at Xxxxxx xxx Xxxxx, 00000
Xxxxx Xxxxxx, Xxxxxx,
- Xx. Xxxxxx XXXXXXX, a French citizen, residing at 00, xxxxxx xx Xxxxxxx
Xxxxxx, 00000 Xxxxx, Xxxxxx,
- Xx. Xxxxxx XXXXX, a French citizen, residing at 0, xxx Xxxxx Xxxx, 00000 Xxxx,
Xxxxxx
- Xx. Xxxx-Xxx XXXXXXXX, a French citizen, residing at 00 Xxxxx Xxxx, XX 00000
Xxxxxxxxx, XXX,
- Xx. Xxxxxxx XXXXXX, a French citizen, residing at 0, xxxxx Xxxxxx Xxxxxx,
00000 Xxxxxxxxxxxx, Xxxxxx,
- Xx. Xxxxxx XXXXXXXX, a Swiss citizen, residing at x/x Xxxxxx Xxxxxx,
Xxxxxxxxxxx 0, 0000 Xxxxxx, Xxxxxxxxxxx, duly represented by Xx. Xxxxxxx-Xxxxx
Xxxxxx, pursuant to the power of attorney attached as Annex X,
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- Xx. Xxxxxxx-Xxxxx XXXXXX, a Swiss citizen, residing at Xxxxx xx Xxxxxxxx 0,
0000 Xx Xxxxxxx, Switzerland,
- Xx. Xxxx XXXXXXXXX, a Swiss citizen, residing at 6803 Camignolo, Switzerland,
duly represented by Xx. Xxxxxxx-Xxxxx Xxxxxx, pursuant to the power of attorney
attached as Annex A,
- Xx. Xxxxxx Xxxxxx XXXXXXXXXX, a Swiss citizen, residing at Xxxxxx xxx
Xxxxxxxx, 0000 Xxxxxxxx, Xxxxxxxxxxx, duly represented by Xx. Xxxxxxx-Xxxxx
Xxxxxx, pursuant to the power of attorney attached as Annex A,
- Xx. Xxxxx XXXXXXX, a Swiss citizen, residing at Xxx Xxxx Xxxxxx, 0000
Xxxxxxxxxx, Xxxxxxxxxxx, duly represented by Xx. Xxxxxxx-Xxxxx Xxxxxx, pursuant
to the power of attorney attached as Annex A,
- Xx. Xxxxx XXXXXXX, a Swiss citizen, residing at xxxxxx xxx Xxxxxxxxx 00, 0000
Xxxxx, Xxxxxxxxxxx, duly represented by Xx. Xxxxxxx-Xxxxx Xxxxxx, pursuant to
the power of attorney attached as Annex A,
- Xx. Xxxxxxx XXXXXXX, a Swiss citizen, residing at Xxxxxx xx Xxxx 00, 0000
Xxxxxx, Xxxxxxxxxxx, duly represented by Xx. Xxxxxxx-Xxxxx Xxxxxx, pursuant to
the power of attorney attached as Annex A,
- Mr. Xxxxxxx-Xxxxx AUDEMARS, a Swiss citizen, residing at Xxxxxxxx, 0000 Xx
Xxxxxxx, Xxxxxxxxxxx, duly represented by Xx. Xxxxxxx-Xxxxx Xxxxxx, pursuant to
the power of attorney attached as Annex A,
- Xx. Xxxxxxx XXXX, a Swiss citizen, residing at 00 Xxxxxx xxx Xxxxxxxx, Xxxxxx,
Xxxxxxxxxxx,
- GEMED SA, a Swiss societe anonyme, having its registered address at Route de
Xxxxxx 00, 0000 Xx Xxxxxxx, Xxxxxxxxxxx, with registered capital of 100,000
Swiss francs, and registered with the Commerce Registry under the number 3/173
represented by Xx. Xxxxxxx-Xxxxx Xxxxxx, Chairman of the board of directors and
by Mr. Xxxxxx Xxxxxx, Director, both duly empowered to enter into this Agreement
pursuant to a decision of the board of directors of August 7,1997
(hereinafter defined as the "Sellers" and in Article 1 as the "Shareholders of
IMMI"),
on the other hand.
WHEREAS, the Sellers are the owners of (i) twenty five thousand two
hundred and twenty five (25,225) shares, (ii) four thousand seven hundred and
eighty nine (4,789) warrants ("bons de souscription"), and (iii) two thousand
one hundred and forty three (2,143) convertible debentures ("obligations
convertibles en actions") of IMMI, a French societe anonyme having its
registered office at
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Universite Xxxxxx Xxxxxxx - xxx Xxxxxxxxx Xxxxxxx - 69372 Lyon Cedex, with
registered capital of 3,581,950 French francs, and registered at the Register of
Commerce and Companies of Lyon under the number B 392 277 828 (hereinafter the
"Company").
As of the date of this Agreement, the sole and exclusive owners of all
the shares, warrants and convertible debentures of the Company are the Sellers
listed hereinafter:
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NUMBER OF
NUMBER OF NUMBER OF CONVERTIBLE
SELLERS SHARES WARRANTS DEBENTURES TOTAL
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Mme Xxxxxxx XXXXX 4187 4187
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M. Xxxxxxxx XXXXX 3279 3279
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M. Xxxxxx XXXXXXX 6342 3732 10074
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M. Xxxxxx XXXXX 1761 1761
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M. Xxxx-Xxx XXXXXXXX 1491 1491
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M. Xxxxxxx XXXXXX 282 282
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GEMED XX 0000 565 1144 5884
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X. XXXXXXXX 994 135 273 1402
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X. Xxxxxxx Xxxxx XXXXXX 457 52 106 615
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M. Xxxx XXXXXXXX 386 52 106 544
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M. P.A. BOTINELLI 386 52 106 544
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X. XXXXXXX 386 52 106 544
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X. X. XXXXXXX 386 52 106 544
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X. X. XXXXXXX 386 52 106 544
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M. Xxxxxxx-Xxxxx 232 31 63 326
AUDEMARS
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M. Xxxxxxxx XXXX 95 14 27 136
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TOTAL 25225 4789 2143 32157
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The Sellers' shares, warrants and convertible debentures are
hereinafter collectively referred to as the "Shares". The Sellers wish to sell
and the Buyer agrees to buy all of the Shares subject to the terms of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, THE PARTIES HERETO AGREE AS
FOLLOWS:
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ARTICLE 1
PURCHASE AND SALE OF SHARES
1.1. Shares to be Sold. At the Date of Closing (as hereinafter defined)
the Sellers shall sell and transfer all the Shares to Buyer, and Buyer shall
purchase and accept all the Shares from Sellers. At the Date of Closing, the
Shares shall constitute all of the issued and outstanding capital stock of the
Company.
1.2 Purchase Price for the Shares - Payment. The aggregate purchase
price for the Shares shall be paid by delivery of six hundred nineteen thousand
three hundred and fifty five (619,355) shares of Buyer's common stock, with a
par value of 0,01 US dollars (the "Purchase Price Shares"). The Purchase Price
Shares has been determined based on the quoted price at Nasdaq of the shares of
Buyer's common stock at the close of the trading day on July 10, 1997 of 7.75 US
dollars a share.
Buyer will issue the Purchase Price Shares to Sellers in an offering to
be made in accordance with the terms of Regulation S promulgated under the
United States Securities Act of 1933, as amended (the "Act") or Section 4(2) of
the Act or other applicable exemptions from registration.
After issuance of the Purchase Price Shares on the Date of Closing,
they will be immediately freely tradeable outside the United States (subject to
the securities laws of jurisdictions other than the United States) and tradeable
in the United States after the Date of Closing in accordance with the United
States securities laws as provided below.
The Buyer undertakes to file a Registration Statement on Form S-3 (or
such other form as may be needed in accordance with the applicable rules of the
Securities and Exchange Commission) with the Securities and Exchange Commission
on November 21, 1997, or as soon thereafter as is practicable, for the
registration on behalf of the Sellers of 619,355 shares of capital stock of
Buyer. In addition to the Registration Statement on Form S-3 permitting the
Shareholders of IMMI to sell shares of capital stock of Buyer upon the
effectiveness, said Shareholders of IMMI who are foreign persons may sell shares
of capital stock of Buyer notwithstanding the foregoing, subject to Regulation S
promulgated under the Securities Act of 1933, as amended (the "Act"), which
permits sales for 40 days, provided such sales are not otherwise deemed to
constitute part of a distribution. For a period of eighteen months following the
Date of Closing, the Shareholders of IMMI may only sell shares of capital stock
of Buyer received by said Shareholders of IMMI in the aggregate as follows:
(i) during the first quarter following the Date of Closing - 50,000
shares;
(ii) during the second quarter following the Date of Closing - 50,000
shares plus 1% of the total shares of capital stock of Buyer traded on
the Nasdaq Stock Market, during the first quarter;
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(iii) during the third quarter following the Date of Closing - 75,000
shares plus 1% of the total shares of capital stock of Buyer traded on
the Nasdaq Stock Market during the second quarter;
(iv) during the fourth quarter following the Date of Closing - 100,000
shares plus 1% of the total shares of capital stock traded on the
Nasdaq Stock Market in the third quarter, and
(v) during the fifth quarter following the Date of Closing - 100,000
shares plus 1% of the total shares of capital stock traded on the
Nasdaq Stock Market in the fourth quarter, and
(vi) during the sixth quarter following the Date of Closing - 100,000
shares plus 1% of the total shares of capital stock traded on the
Nasdaq Stock Market in the fifth quarter.
After the sixth quarter, the Shareholders of IMMI may sell shares of
Buyer subject to Rule 144 of the Act (as in effect as of the date hereof) for a
period of six months thereafter and, after two years from the Date of Closing,
the Shareholders of IMMI may sell the balance of the shares owned by them of
Buyer pursuant to Rule 144(k) of the Act (as in effect as of the date hereof).
1.3. Closing. The Closing (the "Closing") shall take place on the
date hereof (the "Date of Closing") at the offices of GEMED, Route de Xxxxxx 00,
0000 Xx Xxxxxxx, Xxxxxxxxxxx.
1.4. Deliveries by Sellers. At the Closing, the Sellers shall
deliver the following to the Buyer:
(a) Transfer deed of Shares (the "Ordres de mouvement") signed
by the Sellers, (including the shares ("actions"), convertible
debentures ("obligations convertibles") and warrants ("bons de
souscription"));
(b) The minutes of the meeting of the Board of Directors of
the Company approving this Agreement and the Buyer as transferee of the
Shares in compliance with article 11.2 of the by-laws of the Company
(Board minutes of August 11, 1997), and other actions the Buyer may
reasonably request;
(c) The resignation, effective as of the Date of Closing of
all directors of the Company (save for Mr. Hascoet), and of all
Directors and Officers of Innovative Medical Machines International,
Inc., without any payment nor indemnity;
(d) A release certificate by Bank San Paolo of any pledge on
the Shares of Xx. Xxxxxx Xxxxx;
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(e) A waiver, duly signed by all the Sellers, to all accrued
interest as of the Date of Closing on all convertible debentures issued
by the Company;
(f) The written agreements of banks "Societe Generale" and
"Banque Populaire Du Dauphine Et Des Alpes Du Sud" undertaking to
release the Company of the joint pledge of second rank on the going
business ("fonds de commerce") of the Company given on July 10, 1996,
subject to the remittance by the Buyer of the surety agreements
referred to in Article 1.5.2, and instructing the public notary
("notaire") to carry out all legal formalities to effect these
releases;
(g) The written agreement of bank "Societe Generale" releasing
the Company of the pledge of third rank on the going business ("fonds
de commerce") of the Company given on March 24, 1997, subject to the
remittance by the Buyer of the surety agreement referred to in Article
1.5.2; and instructing the public notary ("notaire") to carry out all
legal formalities to effect this release;
(h) The letter of the Company, sent by registered mail,
notifying Anvar of the the proposed sale of the Shares of the Company
to the Buyer;
(i) The legal opinion of Counsel of the Sellers in the form
attached as Annex 1.4 (j);
(j) The following financial statements in conformity with
Regulation S-X promulgated under the Securities Act of 1933, as
amended: balance sheet at December 31, 1996; statements of income, cash
flows and changes in stockholders' equity for years ended December 31,
1996 and December 31, 1995; balance sheet at June 30, 1997; statements
of income, cash flows and changes in stockholders' equity for the six
month period ended June 30, 1997;
(k) The written agreement between the Sellers terminating any
shareholders' agreement which may have existed, with effective date of
termination on the date of Closing;
(l) The debt forgiveness agreement duly signed by Mr. Hascoet,
Xx. Xxxxx;
(m) The Registration Rights Agreement dated as of the date of
this Agreement duly signed and executed by and among the Sellers and
the Buyer.
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1.5. Deliveries by the Buyer.
1.5.1. At the Closing, the Buyer shall deliver to the Sellers:
(a) The Purchase Price Shares represented by the certificates
for the 619,355 shares of capital stock of Buyer, bearing appropriate
restrictive legends, which shall be delivered as follows to the
Sellers:
Number of shares of
Sellers common stock of Buyer Legends
------- --------------------- -------
- Xxx. Xxxxxxx XXXXX 80,643 A C
- Xx. Xxxxxxxx XXXXX 63,155 A C
- Xx. Xxxxxx XXXXXXX 194,028 A C
- Xx. Xxxxxx XXXXX 33,917 A C
- Xx. Xxxx-Xxx XXXXXXXX 28,717 A B
- Xx. Xxxxxxx XXXXXX 5,431 A C
- Xx. Xxxxxx XXXXXXXX 27,003 A C
- Xx. Xxxxxxx-Xxxxx XXXXXX 11,845 A C
- Xx. Xxxx XXXXXXXX 10,478 A C
- Xx. Xxxxxx Xxxxxx XXXXXXXXXX 10,478 A C
- Xx. Xxxxx XXXXXXX 10,478 A C
- Xx. Xxxxx XXXXXXX 10,478 A C
- Xx. Xxxxxxx XXXXXXX 10,478 A C
- Mr. Xxxxxxx-Xxxxx AUDEMARS 6,279 A C
- Xx. Xxxxxxx XXXX 2,619 A C
- GEMED SA 113,328 A C
Total: 619,355
The certificates evidencing the Purchase Price Shares shall be endorsed with the
following legends:
A: THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED
PURSUANT TO A STOCK PURCHASE AGREEMENT DATED SEPTEMBER 5, 1997 AND HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED ("THE ACT") OR THE SECURITIES COMMISSION OF ANY STATE UNDER
ANY STATE SECURITIES LAWS.
B: (FOR PURCHASE PRICE SHARES ISSUED PURSUANT TO THE EXEMPTION PROVIDED BY
SECTION 4(2) AND REGULATION D THEREUNDER:). THE SHARES HAVE BEEN ISSUED PURSUANT
TO THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT PROVIDED BY
SECTION 4(2) AND REGULATION D PROMULGATED THEREUNDER. THEY MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED WITHOUT REGISTRATION UNDER THE ACT OR AN OPINION
OF COUNSEL TO THE COMPANY THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE ACT IS AVAILABLE.
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C: (FOR PURCHASE PRICE SHARES ISSUED PURSUANT TO REGULATION S:) THE SHARES HAVE
BEEN ISSUED PURSUANT TO THE SAFE HARBOR PROVIDED BY REGULATION S PROMULGATED
UNDER THE ACT. THE SHARES MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED IN
THE UNITED STATES OR TO U.S. PERSONS (AS SUCH TERM IS DEFINED IN REGULATION S)
UNLESS THEY ARE REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS,
OR SUCH OFFERS, SALES AND TRANSFERS ARE MADE PURSUANT TO AN AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS.
(b) The Registration Rights Agreement dated as of the date of
this Agreement duly signed and executed by and among the Buyer and the
Sellers.
1.5.2. At the Closing, the Buyer shall deliver to:
(a) Bank "Societe Generale" and to Bank "Banque Populaire Du Dauphine
Et Des Alpes Du Sud" two surety agreements ("cautionnement") to guarantee, in
the event of default of the Company occurring after the Date of Closing, the
reimbursement by the Company of two loans agreements each in a respective amount
of FF 1,000,000 entered into by the Company in a single agreement dated July
10,1996.
(b) Bank "Societe Generale" a a surety agreement ("cautionnement") to
guarantee, in the event of default of the Company occurring after the Date of
Closing, the reimbursement by the Company of a loan agreement in an amount of
FF. 350,000 entered into by the Company on March 24,1997.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLERS
The Sellers hereby jointly and severally make the
representations and warranties set forth in this Article 2. For the purposes
hereof, "knowledge of the Sellers" shall include matters known to any of the
Sellers or the Company. When reference is made to any event, change or effect
having a "Material Adverse Effect", this reference shall mean that this event,
change or effect materially xxxxx or is reasonably likely to materially harm the
business, operations, prospects, assets (including intangible assets), liability
(including contingent liabilities), financial situation or operation profits of
the Company, or that this event, change or effect delays or is reasonably likely
to delay or prevents or is reasonably likely to prevent the consumation of the
transactions contemplated by this Agreement.
2.1. Corporate Organization. The Company is a societe anonyme
duly organized and validly existing under French law. It has the corporate power
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and authority to own or lease its properties and to carry on its business in the
manner in which it is currently conducted. Save for a wholly owned subsidiairy
incorporated under the name Innovative Medical Machines Inc., registered under
the laws of the State of Delaware United States, the Company does not, directly
or indirectly, have any equity interest or other property interest in any
company, joint venture, partnership, association or other entity. Complete and
correct copies of the certificate of incorporation and by-laws (the
"Constitutive Documents") are attached as Annex 2.1. The Company has not stopped
making payments, declared a moratorium on payments of its debts, is not in
bankruptcy or reorganization or liquidation, has not entered into an assignment
for the benefit of its creditors and has not become subject to any
reorganization procedure.
2.2. Authorization. The Sellers have the requisite capacity to
enter into this Agreement and the other agreements to be executed and delivered
by the Sellers pursuant hereto (the "Additional Sellers' Documents") and to
carry out the transactions contemplated hereby and thereby. When fully executed
and delivered, this Agreement and each of the Additional Sellers' Documents will
constitute the valid and binding agreements of the Sellers, enforceable against
the Sellers in accordance with their respective terms.
2.3. Capitalization. As of the date of this Agreement, the
share capital of the Company is as set forth in the preamble to this Agreement.
All the shares ("actions") have been validly issued and are fully paid,
nonassessable and free of any lien, preemptive rights or other restrictions with
respect thereto (save for the restriction enacted by article 11.2 of the by-laws
of the Company concerning the prior consent of the board of the directors for
the sale of shares "actions" to a non-shareholder). All the warrants and
convertible debentures ("bons de souscription en actions", and "obligations
convertibles an actions") have been validly issued, have not been converted into
shares ("actions") and are nonassessable and free of any lien, preemptive rights
or other restrictions with respect thereto. The Shares are held by the Sellers
as set out in the table in the preamble to this Agreement. There is no agreement
or commitment which could result in the Company having to purchase, amortize,
issue or transfer the Shares of the Company in any manner whatsoever.
2.4. Ownership of Shares. On the Date of Closing, the Buyer
will acquire all rights to the Shares free of any liens, pledges, charges or
encumbrances. No Seller has granted any rights to any individual or entity to
purchase any of the Shares.
2.5. Consents and Approvals; Non-Contravention. Neither the
execution, delivery or performance of this Agreement or of any related
documents, nor the consummation by the Company or the Sellers of the
transactions contemplated hereby or thereby, nor compliance by the Company or
the Sellers with any of the provisions hereof or thereof:
(a) violates any provision of the Constitutive Documents or
any applicable law or regulation,
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(b) With the exception of Anvar as provided in Article 1.4(i),
requires on the part of the Sellers any filing with, or permit, authorization,
consent or approval of, any court, trustee in bankruptcy ("administrateur
judiciaire"), administrative or other authority (a "Governmental Entity"),
(c) With the exception of Anvar as provided in Article 1.4(i),
require, in accordance with the terms of any contract, lease or other agreement
to which the Sellers or the Company is a party, any consent, approval or
authorization,
(d) violate any judicial or arbitral decision, any law or
regulation or contractual provision applicable to the Sellers or the Company, or
(e) result in a violation of any agreement or result in the
termination, modification, cancellation, loss of a benefit, or result in the
creation or imposition of any lien upon any of the respective properties or
assets of the Sellers or the Company.
2.6. Financial Statements. (i) The balance sheet of the
Company as at March 31, 1997, duly audited and certified by the statutory
auditor of the Company, which has been delivered to Buyer and which is attached
as Annex 2.6 is complete, sincere and true and prepared in accordance with
generally applicable accounting principles in France and accurately reflects the
asset and liability situation of the Company at the date and the period
indicated, and (ii) the interim unaudited balance sheet of the Company as of
June 30, 1997 which has been delivered to Buyer and which is attached as Annex
2.6 is complete, sincere and true and prepared in accordance with United States
generally accepted accounting principles ("GAAP") and accurately reflects the
asset and liability situation of the Company at the date and the period
indicated.
The balance sheet of the Company as at March 31, 1997 and the interim unaudited
balance sheet of the Company as at June 30, 1997 are collectively referred to as
the "Financial Statements".
2.7. Interim Change. Since July 1st, 1997, the Company has not
engaged in any business or transaction other than in the ordinary course of
business. In particular (but without this list being exclusive):
(a) the Company has not suffered any change, nor has there
arisen any event, having or which could reasonably be expected to have a
Material Adverse Effect;
(b) the Company has not forgiven or canceled any debts or
claims or waived, released or relinquished any contract right or any other
rights of its business;
(c) the Company has not consented to, or has not had imposed
on it, any liens;
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(d) the Company has not suffered any damage, destruction or
loss of property, whether or not covered by insurance, which had or could
reasonably be expected to have a Material Adverse Effect;
(e) the Company has not accelerated the collection of, granted
any discounts with respect to or sold or assigned to third parties any accounts
receivable or delayed the payment of any payables or, other than in the ordinary
course of business and consistent with past practice, had any reason to write
off as uncollectable any accounts receivable or any portion thereof;
(f) the Company has not assumed any loan, directly or
indirectly, or incurred or guaranteed any obligation with regards to a loan, or
made any loans, advances or capital contributions to, or investment in, any
other individual, corporation, partnership, joint venture, association,
organization or other entity (a "Person"),
(g) pledged or subjected to any lien, sold, assigned or
transferred any asset except for sales of inventory in the ordinary course of
business and consistent with past practice;
(h) the Company has not increased in any manner the wages,
salaries, bonuses, pension plans, retirement allocations or other allocations of
any officer, employee or other person,
(i) the Company has not entered into any pension plan,
profit-sharing, bonus, severance pay, or other plan, agreement or arrangement
relating to retirement or other benefits,
(j) the Company has not entered into any employment or
consulting agreement with any person,
(k) the Company has not amended any plan, agreement or
arrangement in effect as of the date hereof;
(l) the Company has not been the target of any work stoppage
or other labor difficulty;
(m) the Company has not made any investment in any business,
company, partnership, association or other entity.
(n) the Company has not entered into any agreement, contract
or commitment, with respect to the manufacture of any product of the Company or
any update or derivative thereof (collectively, the "Products");
(o) the Company has not declared, paid or set aside for
payment any dividend or other distribution;
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(p) the Company has not made any change in its accounting
principles or methods, except as may have been required by a change in generally
accepted accounting principles in France;
(q) the Company has not issued any share or other securities
other than the Shares.
2.8. No Undisclosed Liabilities. Except as and to the extent
of the amounts specifically reflected or reserved against in the Financial
Statements, and obligations under agreements, commitments or contracts entered
into, in the ordinary course of business, the Company has not incurred any
liabilities or obligations of any nature (whether or not accrued).
2.9. Litigation. There is no claim, action, suit, inquiry or
investigation by or before any judicial entity pending or, to the knowledge of
the Sellers, threatened against or involving the Company or affecting any of its
assets. There is no basis known to the Sellers for any such claim, action, suit,
inquiry, or investigation.
2.10. No Violation.
(a) The Sellers and the Company have always been in full
compliance with the by-laws of the Company.
(b) The Sellers and the Company have always been in full
compliance with (i) all legal regulations applicable to the Company and (ii) all
judicial decisions related thereto,
(c) The Sellers and the Company have not breached any
obligations with regard to any contract or agreement irrespective of its
purpose.
(d) The Company has all authorizations (from Governmental
Entities and other authorities) necessary to : (i) enable it conduct its
business as currently conducted and, if necessary (ii) to enter into all
transactions contemplated by this Agreement.
2.11. Title to Assets. The Company does not own any real
property assets. With the exception of the liens listed in the two Certificates
of recordation of liens delivered by the Commercial Courts of Lyon and Grenoble,
attached as Annex 2.11, the Company has good and marketable title, free and
clear of all liens, of all assets, rights, trademarks, trade names, licenses and
properties, which are used in the conduct of the business conducted by the
Company (the "Assets"). The Company has valid and enforceable leases or
licenses, as the case may be, with respect to the Assets consisting of property
that is leased or licensed to the Company, and there does not exist any default
on the part of the Company under such leases or licenses. Since inception, the
Company has validly entered into and, as the case may be, has validily and
legally terminated any lease agreement used for carrying on its business
activities.
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2.12. Intellectual and Industrial Property.
(a) A true and complete list of all the Company's industrial
and intellectual property rights, including tradenames, trademarks and patents
(collectively, "Intellectual and Industrial Property") owned by, or licensed to
the Company is contained in Annex 2.12. Such Annex 2.12 also provides a copy of
all the certificates of recordations for the Intellectual and Industrial
Property, the States in which these registrations are issued and the States
where applications concerning Intellectual and Industrial Property are pending
on the date hereof. The Intellectual and Industrial Property described in Annex
2.12 constitutes all Intellectual and Industrial Property necessary to operate
the Company's business. The Intellectual and Industrial Property is duly and
validly registered under the Company's name and all fees for recordation or
renewal have been timely paid by the Company.
(b) The Company has the sole and exclusive right to use, sell,
license, dispose of or bring actions for the infringement of its rights to the
Intellectual and Industrial Property as utilized in its business; there are no
royalties, honoraria, fees or other payments payable by the Company to any
Person by reason of ownership, use, licensure, sale or disposition of any
Intellectual and Industrial Property.
(c) There are no license agreements, commitments or guaranteed
royalty or fee payments with respect to Intellectual and Industrial Property.
The Closing of the transaction contemplated hereby will not in any way impair
the right of the Company to use, sell, license or dispose of, or any portion
thereof, or to bring any action for the infringement of any of such rights to
the Intellectual and Industrial Property.
(d) None of the former or present employees or officers of the
Company hold any right, title or interest, directly or indirectly, in whole or
in part, in or to any Intellectual and Industrial Property which the Company
currently owns or which is necessary for the business of the Company; no former
or present employees, officers or directors of the Company or any other third
party has asserted any moral rights claim with respect to the Intellectual and
Industrial Property.
(e) There is no pending or threatened claim or litigation
challenging or questioning the validity, ownership or right to use, sell,
license or dispose of any Intellectual and Industrial Property nor, to the
knowledge of the Sellers, is there a valid basis for any such claim, nor has the
Company received any notice asserting that the proposed use, sale, license or
disposition by the Company of any Intellectual and Industrial Property conflicts
or will conflict with the rights of any other party, nor is there, to the
knowledge of the Sellers, a valid basis for any such claim or assertion.
(g) There are no allegations by any third party that the
Company has infringed any copyright, patent, trademark, trade name or
misappropriated or misused any invention, patent, trade secret or other
proprietary information
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entitled to legal protection, and the Company has not asserted any claim of
infringement, misappropriation or misuse.
2.13. Contracts and Commitments.
(a) All material contracts and agreements of the Company
(whether written or oral), corresponding to the criteria noted hereinbelow
("Material Contracts") are attached or described in Annex 2.13.
(i) all contracts or agreements in an amount greater than
100,000 francs in which the Company is the creditor or the debtor;
(ii) all contracts or agreements with a duration greater
than one year (save for employment contracts);
(iii) all license and other agreements with respect to any
Intellectual and Industrial Property;
(iv) distribution, lease, license, joint venture,
representation or manufacturing agreements that can only be terminated with a
notice period of 30 days or more;
(v) any agreement, contract or engagement containing a
non-competition clause;
(vi) all agreements, contracts or engagements regarding
the acquisition of real estate or any participation in a company, partnership,
joint venture or any other entity;
(vii) contracts or other commitments with any supplier
containing any provision permitting any party other than the Company that is a
party thereto to renegotiate the price or other terms, or containing any payback
or other similar provision, upon the occurrence of a failure by the Company to
meet its obligations under the contract when due or the occurrence of any other
event;
(viii) credit agreements, financial obligations,
guarantees of or agreements to acquire any such debt obligation of others or
similar documents relating to indebtedness for borrowed money to which the
Company is a party or by which any assets of the Company is bound, restricted or
encumbered;
(ix) all agreements or contracts obliging the Company to
reimburse, in whole or in part, any financial benefit, investment, subsidy
granted by any public agency;
(x) all agreements or contracts granting bonuses or
subsidies to the Company either in cash or in kind;
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(xi) all employment, consulting and severance agreements,
and settlement agreements in the case of termination or indemnification of
employment contracts;
(xii) any agreement, or group of related agreements with
the same party or any affiliates, under which the Company has leased or has
agreed to lease any property;
(xiii) any other contract which is material to the
business, operations or prospects of the Company or any other contract,
instrument, commitment, plan or arrangement which has not been made in the
ordinary course of business.
(b) Each Material Contract: (i) is valid and binding on the
other party or parties thereto and is in full force and effect and (ii) after
the Date of Closing shall continue in full force and effect without penalty or
other adverse consequence arising solely from the consummation of the
transactions contemplated by this Agreement. Neither the Company nor, to the
best knowledge of the Sellers, any other party to any Material Contract is in
breach of, or default under, any Material Contract.
(c) The Company duly and timely satisfies all the conditions
provided in the agreements entered into with ANVAR on July 10, 1996 (one
agreement) and on March 25, 1997 (two agreements), copies of which are attached
in Annex 2.13 (c).
(d) With the exception of a loan agreement entered into with
Banque Populaire on November 3, 1995, a loan agreement entered into with Banque
Populaire and with Societe Generale on July 10, 1996 and a loan agreement
entered into with Societe Generale on April 8, 1997 (all three loans being
attached as Annex 2.13 (d)), the Company has not entered into any credit
agreement or loan agreement with any financial institution or third party.
(e) With the exception of two ANVAR agreements of July 10,
1996 and March 24, 1997 and with the exception of a grant from COFACE granted on
October 23, 1995 and attached in Annex 2.13 (e), the Company has not received
any financial benefit, investment or subsidy granted by any public agency.
(f) The Company does not have outstanding contracts with
respect to the employment of any officer, individual, employee, agent,
consultant, adviser, salesperson, representative or other person on a full-time,
part-time, contract or consulting basis which differs in any material respect
from the requirements of applicable law including provisions with respect to
termination indemnification. A copy of all the employment contracts of the
employees of the Company as of the date hereof is attached in Annex 2.13 (f).
(g) With the exception of a lease agreement for office space
located in Meylan, entered into with SCI Des Buclos (a copy of which is attached
as Annex 2.13 (g)), which shall terminate on June 22, 1998, without indemnity or
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other responsibility on the part of the Company save for any rent payments which
would be outstanding after the Date of Closing, the Company does not have any
agreement with any of the Sellers or any affiliate of any Seller.
(h) Except as required by law, the Company does not have any
pension, profit-sharing, bonus, severance pay, retirement, hospitalization,
insurance, stock purchase, stock option or other benefit with or for the benefit
of any of the Sellers nor with any third party to this Agreement (a "Benefit
Plan").
(i) The Company does not have any employee on a fixed-term
employment agreement and the Company has not entered into an agreement for the
secondment of personnel with any of the Sellers or any affiliate of any Seller.
(j) the Company does not have any outstanding loan to any
Seller or to any employee.
(k) The Company has not guaranteed any obligations of the
Sellers or any other person. The Sellers have not guaranteed any obligations of
the Company which would still be in effect after the Date of Closing.
(l) All shareholders agreements, voting agreement, pledge
agreement, or sale-purchase agreements relating to the Shares and which have
been in existence between certain Sellers before the Date of Closing shall
become null and void on the Date of Closing and shall give rise to no claim or
liability whatsoever whether against the Company or the Buyer.
(m) Any pledge agreement relating to the Shares and which have
been granted by certain Shareholders of IMMI in favor of a third party shall be
validly terminated on Date of Closing and shall give rise to no claim or
liability whatsoever whether against the Company or the Buyer.
(n) The Company does not have any contract which is material
to its business, operations or prospects or any other contract, instrument,
commitment, plan or arrangement which has not been made in the ordinary course
of business.
(o) Each Material Contract: (i) is valid and binding on the
other party or parties thereto and is in full force and effect and (ii) after
the Date of Closing of the transaction contemplated by this Agreement, shall
continue in full force and effect without penalty or other adverse consequence
arising solely from the consummation of the transactions contemplated by this
Agreement. Neither the Company nor, to the best knowledge of the Sellers, any
other party to any Material Contract is in breach of, or default under, any
Material Contract.
(p) The Company is not restricted by any agreement from
carrying on its business anywhere in the world.
2.14. Customers and Suppliers. Annex 2.14 sets forth a list of
the largest customers of the Company in terms of sales for the six months ended
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June 30, 1997 as well as a list of the ten largest suppliers of goods and
materials to the Company. There has not been any adverse change in the business
relationship of the Company with any customer or supplier since July 1st, 1997.
2.15. Insurance. The Company has valid insurance policies
which adequately cover all the risks against which it is normal to insure
considering the activities of the Company. There has not been any failure to
give any notice or present any claim under any such policy in a timely fashion
or in the manner or detail required by the policy . There are no outstanding
past due premiums or claims, and there are no provisions for retroactive or
retrospective premium adjustments. No notice of cancellation or non-renewal with
respect to, or disallowance of any claim under, any such policy has been
received by the Company. Execution of this Agreement shall not entitle any of
the insurers covered by this Article 2.15 to modify the terms of the insurance
policies taken out by or on behalf of the Company.
2.16. Environmental Matters. The Company is not in breach of
any environmental laws or regulations. The Company has received all required
environmental approvals and there has been no claim made against the Company
with respect to the violation of any environmental laws or regulations.
2.17. Taxes - Social security contributions.
(a) All tax and social security returns, declarations,
reports, estimates, information returns, and statements (collectively, "Tax and
Social Security Returns") required to be filed by the Company on or before the
date hereof for all periods ending on or before the Date of Closing have been
timely filed, and all such Tax and Social Security Returns are true, correct and
complete.
(b) The Company has timely paid (or accrued in its accounts)
all taxes and social security contributions due or claimed to be due by it by
any taxing or social security authority in respect to periods (or any portion
thereof) ending on or before the Date of Closing, and no failure in this regard
may be attributed to it.
(c) No audit or other proceeding by any national or local
court, governmental, regulatory, parafiscal, administrative or similar authority
are presently pending with respect to any taxes or social security contributions
of the Company.
(d) The Company is not a party to, or is bound by or has any
obligation under, any tax-consolidation agreement or similar contract or
arrangement.
2.18 Research and development tax credit. As of June 30, 1997,
the research and development tax credit of the Company is as follows:
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FRENCH FRANCS 1994 1995 1996 TOTAL
Gross tax credit 208,366 516,085 508,842 1,233,293
Allowance -- (147,000) (508,842) (655,842)
-------------------------------------------------------------------------------
Net tax credit 208,366 369,085 -- 577,451
The net tax credit of FF. 577,451 shall be accepted and paid by the French tax
authorities.
2.19 Regulatory Authority. The Company has never been the
subject of any inspection or investigation by a French or foreign regulatory
authority and has never received any notice of deficiency by any regulatory
authority (including but not limited to the French Ministry of Health, the
Federal United States Food And Drug Administration, and the Japanese Ministry of
Health ("Koseisho").
2.20 Sale of Neuromate. The Company is authorized to sell
Neuromate product in the European Community, Japan and the United States and
holds all regulatory authorizations to this effect under its own name, save for
the regulatory authorization of Koseisho which has been granted to the exclusive
distributor of the Company in Japan, IMATRON. All such authorizations are
attached in Annex 2.20 to this Agreement. No further action must be taken by the
Company to sell Neuromate product in any of the above jurisdictions or to
maintain its right to sell Neuromate product or any improvements thereof in
those jurisdictions.
2.21. Transactions with Affiliates. None of the Sellers has,
directly or indirectly, (i) an interest in any entity which furnished or sold,
or which furnishes or sells, services or products which the Company furnishes or
sells, or proposes to furnish or sell, or (ii) any interest in any Person which
purchases from or sells or furnishes to the Company any goods or services, with
the exception of informal commercial relationships with Audemars Piguet for the
purchases of components by the Company, which purchases are carried on from time
to time at the discretion of the Company and on an arm's length basis.
2.22 Accounts Receivable. All receivables of the Company arose
in the ordinary course of business and the aggregate amounts thereof are
collectible (except to the extent reserved against as reflected in the Financial
Statements) and are carried at values determined in accordance with French and
US generally accepted accounting principles. None of the receivables is subject
to any claim of offset, setoff or counterclaim and there are no facts or
circumstances that would give rise to any such claim. No person has any lien,
charge, pledge, security interest or other encumbrance on any of such
receivables and no agreement for deduction or discount has been made with
respect to any of such receivables.
2.23 Sellers' former shareholders' accounts ("compte
courant"). As of the Date of Closing, any and all sums which could be due by the
Company to the Sellers, whether or not registered in the shareholders' accounts
("compte
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courant") have been either reimbursed, set-off or forgiven and there exists no
monies owed by the Company to the Sellers.
2.24 Minute Books. The minute books of the Company made
available to counsel for Buyer contain all minutes since the Company's
incorporation as normally kept in conformance with French law.
2.25 Entirety of Representations. The above representations
and warranties are true, accurate and complete in all respects and do not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made not misleading.
2.26 Regulations Requirements. The Sellers acquiring Purchase
Price Shares pursuant to Regulation S promulgated under the Act represent that
are neither a United States citizen nor a United States resident and that the
offer to acquire the Purchase Price Shares was not made in the United States.
2.27 Section 4(2) Requirements. With respect to Xx. Xxxxxxxx
only, Xx. Xxxxxxxx represents and warrants to the Buyer as follows: (i) Xx.
Xxxxxxxx is acquiring the Purchase Price Shares for his own account for
investment and not with a view to, or for sale in connection with, any
distribution thereof, nor with any present intention of distributing or selling
the same, and (ii) Xx. Xxxxxxxx has adequate net worth and means to provide for
his current needs and contingencies and the financial capacity to sustain a
complete loss of his investment in the Buyer.
2.28 Innovative Medical Machines International, Inc. The
Sellers hereby jointly and severally represent and warrant that (i) the Company
is the owner of two hundred (200) shares of Common Stock, par value $0.01 US
dollars, of Innovative Medical Machines International, Inc., a Delaware
corporation (the "Subsidiary"); (ii) the 200 shares of Subsidiary Common Stock
held by the Company represents the total outstanding stock of the Subsidiary;
(iii) the Subsidiary is a corporation duly organized , validly existing and in
good standing under the laws of the State of Delaware, United States, and has
full corporate power and authority to own, lease and operate its assets,
properties and business and to carry on its business as now being conducted;
(iv) the Subsidiary is duly qualified to do business and is in good standing as
a foreign corporation in the Commonwealth of Massachusetts, (v) the Subsidiary
has applied for and received from the Food & Drug Administration of the United
States Department of Health and Human Services a 510k premarket approval notice
for the Neuromate, a product of the Company, and (iv) to the knowledge of the
Sellers, there does not exist any circumstance or event involving the Subsidiary
as of the Date of Closing that is likely to result in a Material Adverse Effect
to the Company.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF BUYER
The Buyer acknowledges that the Sellers required the Buyer to
make the following representations and warranties as a determining condition of
this Agreement, failing which the Sellers would not have accepted the Purchase
Price Shares. Accordingly, the Buyer hereby represents and warrants to the
Sellers as follows:
3.1. Corporate Organization. Buyer is duly organized, validly
existing and in good standing under the laws of the State of Delaware.
3.2. Authorization. Buyer has the requisite corporate power
and authority to enter into this Agreement and the other documents and
instruments to be executed and delivered by Buyer pursuant hereto (the
"Additional Buyer's Documents") and to carry out the transactions contemplated
hereby and thereby. When fully executed and delivered, this Agreement and each
of the Additional Buyer's Documents will constitute the valid and binding
agreements of Buyer, enforceable against it in accordance with their respective
terms.
3.3. Consents; Due Execution; Delivery and Performance of the
Agreement. The Buyer's execution, delivery and performance of this Agreement (a)
has been duly authorized under Delaware law by all requisite corporate action by
the Buyer, (b) will not violate any law or the Restated Certificate or Restated
By-laws of the Buyer or any other corporation of which the Buyer owns at least
50% of the outstanding voting stock (a "Buyer Subsidiary") or any provision of
any material indenture, mortgage, agreement, contract or other material
instrument to which the Buyer or any Buyer Subsidiary is a party or by which any
of their respective properties or assets is bound as of the Date of Closing or
(c) require any consent by any person under, constitute or result (upon notice
or lapse of time or both) in a breach of any term, condition or provision of, or
constitute a default or give rise to any right of termination or acceleration
under any such indenture, mortgage, agreement, contract or other material
instrument or result in the creation or imposition of any lien, security
interest, mortgage, pledge, charge or other encumbrance, of any material nature
whatsoever, upon any properties or assets of the Buyer or any Buyer Subsidiary.
Upon its execution and delivery, and assuming the valid execution thereof by the
Sellers, the Agreement will constitute a valid and binding obligation of the
Buyer, enforceable against the Buyer in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
3.4. Authorized Capital Stock. As of the Date of Closing, the
authorized capital stock of the Buyer consists of (a) 15,000,000 shares of
common
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stock, $0.01 par value per share, of which on September 5, 1997 3,366,956 shares
were validly issued and outstanding, fully paid and non-assessable, (b)
1,000,000 shares of undesignated preferred stock, $0.01 par value per share,
none of which are issued and outstanding, and (c) 4,332,816 shares of common
stock issuable upon exercise of outstanding warrants at exercise prices ranging
from $0,01 to $8.25 per share, and (iv) 1,052,317 shares of common stock
issuable upon exercise of outstanding options granted pursuant to the Buyer's
stock option plans, at exercise prices ranging from $0.07 to $7.84 per share.
3.5. Issuance, Sale and delivery of the Shares. When issued
and paid for, the Purchase Price Shares to be sold hereunder by the Buyer will
be validly issued and outstanding, fully paid and non-assessable.
3.6. Exempt Transaction. Subject to the accuracy of the
Sellers representations in Article 1.2 of this Agreement, the issuance of the
Purchase Price Shares will constitute transactions which are not subject to the
registration requirements of Section 5 of the Securities Act of 1933, as amended
(the "Securities Act") in reliance upon Regulation S of the Securities Act and
the regulations promulgated pursuant thereto, with the exception of Xx.
Xxxxxxxx. The issuance of the Purchase Price Shares to Xx. Xxxxxxxx will
constitute a transaction exempt from the registration requirements of Section 5
of the Securities Act in reliance upon Regulation D of the Securities Act and
the regulations promulgated pursuant thereto, subject to Xx. Xxxxxxxx
representations in Article 2.27.
3.7. Disclosure. Neither this Agreement, nor any other items
prepared or supplied to the Sellers by or on behalf of the Buyer with respect to
the transactions contemplated hereby contain any untrue statement of a material
fact or omit a material fact necessary to make each statement contained herein
or therein not misleading.
3.8. SEC Filings Current and in Compliance. All reports filed
by the Buyer with the Securities and Exchange Commission ("SEC") pursuant to the
reporting requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), when filed, did not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading. The Buyer has made all filings with the SEC to
file any amendment or supplement to any such filings.
3.9. No Material Changes. As of the Date of Closing, there has
been no material adverse change in the financial condition or results of
operations of the Buyer since the filing date of the Buyer's last report with
the SEC pursuant to the reporting requirements of the Exchange Act, except for
losses from continuing operations.
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ARTICLE 4
ADDITIONAL AGREEMENTS
4.1. Consents and Approvals. The parties shall, and Sellers
shall cause the Company to, take all reasonable actions necessary to comply
promptly with all legal requirements which may be imposed with respect to the
transactions contemplated hereby (which actions shall include, without
limitation, furnishing all information required in connection with approvals of
or filings with any Governmental Entity) and will promptly cooperate with and
furnish information to each other in connection with any such requirements
imposed on any of them in connection with the transactions contemplated hereby.
4.2. Further Assurances. From time to time after the Date of
Closing, the Sellers will use all reasonable efforts to obtain any licenses,
permits, waivers, consents, authorizations, qualifications and orders of
Governmental Entities or other Persons or entities as Buyer shall reasonably
request as necessary to enable the Company to continue to enjoy after the Date
of Closing the rights and benefits presently enjoyed by the Sellers in the
operation of the business conducted by the Company.
4.3. Non Competition - Confidentiality.
(a) The Sellers, from the present date until the end of a
three year period, shall not, in the European Union, the United States of
America and Canada, directly or indirectly, own any capital stock or other
equity securities of, have any direct or indirect (unless the participation is
less than 1% of the capital of a publicly traded company) equity or ownership
interest in, or serve as a director, officer, employee, consultant or agent of
any individual, partnership, corporation, trust or unincorporated association
which competes with, or conducts a similar business as that of the Company or
the Buyer, namely the designing, manufacturing and sale of equipment for image
guided surgery.
(b) The following restrictions shall be applicable to Article
4.3 (a):
(i) Xx. Xxxxxxxx shall comply with the non-competion
obligation of Article 4.3 (a) for all its duration, with the exception that he
is authorized to act merely as a consultant in the United States for any medical
equipment company;
(ii) GEMED shall comply with the non-competion obligation
of Article 4.3 (a) for all its duration subject to the continuation by the
Company of the existing supply agreements for spare parts between the Company
and Audemars Piguet, the parent company of GEMED. GEMED declares that Audemars
Piguet undertakes to supply spare parts to the Company after the Date of Closing
in a manner and with timetable deliveries consistent with current practices, at
reasonable costs, and with the same high level of quality as currently in
effect. The termination of all or part of the supply agreements by GEMED or
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Audemars Piguet, for any reason whatsoever, shall not cause the anticipated
termination of the non-competition obligation of GEMED.
(c) The Sellers, from the present date until the end of a
three year period, shall not, directly or indirectly, hire present employees of
the Company or otherwise induce or encourage them to leave the employment of the
Company.
(d) The Sellers shall maintain the confidentiality of all
information which they obtained or may have obtained with respect to the Company
and its business prior to the Date of Closing which is not in the public domain
and which they acquired or had access to due to their position as shareholder or
director or employee of the Company, save for the disclosure of any such
information to which they would be compelled by any Governmental Entity.
(e) The Sellers acknowledge and agree that notwithstanding the
provisions of Article 6.2, in the event of a violation by any of the Sellers of
the provisions of this Article 4.3, the Buyer shall be authorized to file any
appropriate judicial action before any court or any tribunal of any jurisdiction
to seek an injuction against any of the Sellers as well as any appropriate
remedy at law.
4.4. Compliance with Rule 144. At the written request of the
Sellers at any time and from time to time, the Buyer shall furnish to the
Sellers, within three days after receipt of such request, a written statement
confirming the Buyer's compliance with the filing requirements of the SEC set
forth in SEC Rule 144 as amended from time to time.
4.5. Best Efforts to Become S-3 Eligible. The Buyer will use
its best efforts to become eligible to file a registration statement on Form S-3
with respect to the sale of the Purchase Price Shares. The Buyer shall use its
best efforts to make all required filings of all reports with the SEC pursuant
to the Exchange Act.
ARTICLE 5
SURVIVAL AND INDEMNIFICATION
5.1. Survival. All representations and warranties contained in
this Agreement shall survive for three (3) years after the Date of Closing with
the exception of the representations and warranties of Article 2.17 (fiscal and
labor questions) which will survive for the applicable statutes of limitations.
All representations and warranties shall further survive beyond such three-year
period (or period of the applicable statutes of limitation) for so long as any
claim made during such three-year period (or period of the applicable statutes
of limitation) under this Article 5 are not definitively settled. In addition,
it is specified that the periods thus defined apply to the notification of the
event giving rise to indemnification and not to its judicial or amicable
settlement.
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5.2. Indemnification. The Sellers jointly and severally agree
to indemnify and hold harmless the Buyer and/or the Company for the period
stipulated in Article 5.1 commencing on the Date of Closing (and for any further
period during which a claim for indemnification is pending hereunder) against
and in respect of any Damages (as hereinafter defined in Article 5.6) of which
the cause predates the Date of Closing and incurred or sustained by either of
them as a result of any breach by any Seller of this Agreement, including the
representations, warranties and covenants contained herein or in any agreement,
document or other instrument delivered pursuant hereto or in connection
herewith. No investigation made by or for the Buyer shall affect any
representation or warranty of the Sellers contained in this Agreement or the
indemnification obligation of the Sellers set forth herein. The Sellers may not
be relieved of their indemnification or financial obligations in this agreement
by claiming that they did not have knowledge of the facts in question.
5.3. Threshold. As concerns all Damages, the Sellers will not
be held liable under this Article 5 for the indemnification of the Buyer, unless
the total Damages exceed the sum of two hundred thousand (200,000) French
francs, in which case the Sellers will be liable for any sums of Damages
exceeding FF. 200,000.
To determine whether this threshold is met, all sums for which
the Sellers are liable pursuant to the provisions of this Agreement shall be
aggregated irrespective of when such sums are claimed from the Sellers within
the guarantee period defined in article 5.1.
5.4. Procedure for Indemnification.
(a) The Buyer shall give prompt written notice (within 30
days) to the Sellers of any claim or event known to it which does or may give
rise to a claim for indemnification hereunder by the Buyer against the Sellers;
provided that the failure of the Buyer to give notice as provided in this
Agreement shall not relieve the Sellers of their obligations under this Article
5 to the extent that such failure has not prejudiced the Sellers.
(b) In the case of any claim for indemnification hereunder
arising out of a claim, action, suit or proceeding brought against the Company
by any Person who is not a party to this Agreement (a "Third Party Claim"), the
Buyer shall also give the Sellers copies of any written claims, process or legal
pleadings with respect to such Third Party Claim promptly after such documents
are received by the Buyer, it being understood that any delay in remitting such
documentation by the Buyer shall not relieve the Sellers of their obligations
under this Article 5 except to the extent that such failure has prejudiced the
Sellers.
(c) A Seller may elect to compromise or defend at such
Seller's own expense and with such Seller's own counsel any Third Party Claim.
If a Seller elects to compromise or defend a Third Party Claim, it shall, within
30 days
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(or sooner, if the nature of such Third Party Claim so requires), notify the
Buyer of its intent to do so, and the Buyer shall reasonably cooperate in the
compromise of, or defense against, such Third Party Claim.
Such Seller shall pay the Buyer's actual out-of-pocket
expenses incurred in connection with such cooperation including the Buyer's
reasonable legal expenses. After notice from a Seller to the Buyer of its
election to assume the defense of a Third Party Claim, such Seller shall not be
liable to the Buyer under this Article 5 for any legal expenses subsequently
incurred by the Buyer in connection with the defense thereof; provided that the
Buyer shall have the right to employ one counsel of its choice in each
applicable jurisdiction (if more than one jurisdiction is involved) to represent
the Buyer if, in the Buyer's reasonable judgment, a conflict of interest between
the Buyer and such Seller exists in respect of such claim. If the Sellers elect
not to compromise or defend against a Third Party Claim, or fail to notify the
Buyer of their election as provided in this Article 5.4, the Buyer may pay,
compromise or defend such Third Party Claim at the expense of the Sellers,
including the Buyer's reasonable legal expenses. No Seller shall consent to
entry of any judgment or enter into any settlement without the written consent
of the Buyer (which consent shall not be unreasonably withheld), unless such
judgment or settlement provides solely for money damages or other money payments
for which the Buyer is entitled to indemnification hereunder and includes as an
unconditional term thereof the giving by the claimant or plaintiff to the Buyer
of a release from all liability in respect of such Third Party Claim. The amount
of the legal expenses of the Buyer payable by the Sellers shall be included in
the maximum indemnification provision set forth in Article 5.6 (b) (vi).
(d) If there is a reasonable likelihood that a Third Party
Claim may adversely affect the Buyer, other than as a result of money damages or
other money payments for which the Buyer is entitled to indemnification
hereunder, the Buyer will have the right, after consultation with the Sellers,
to have sole control of the defense and settlement of such Third Party Claim
notwithstanding the provisions of Article 5.4.
5.5. Payment of Amounts Due.
(a) In case of a claim by the Buyer under the provisions of
this Article 5, the Sellers shall pay the amounts claimed as soon as there is an
agreement between them with respect thereto.
(b) The Sellers shall be authorized to pay the indemnification
due to the Buyer either in cash or in shares of common stock of the Buyer. The
value of the shares of common stock of the Buyer shall be determined on the
average of the closing price of the shares of the Buyer over the last twenty
(20) trading days immediately preceding the tendering of the Buyer's shares by
the Sellers and payment of the damages, as such closing price appears on the
Nasdaq stock market or if such shares of common stock of the Buyer are traded on
a national securities exchange, as such closing price appears on such exchange.
If the Sellers elect to pay the indemnification due to the Buyer in cash
(whether in whole or in part),
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such payment shall be settled by the Sellers in French francs, using the
currency exchange rate published in the Wall Street Journal on the date before
the Date of Closing (i.e.; USD 1 = FF. 6,1220) .
5.6. Definition of Damages - Determination of the Amount of
Damages.
(a) For purposes of this Article 5, "Damages" shall mean any
loss, liability, damage, cost, expense or diminution of assets suffered or
incurred by the Company or the Buyer (including, in particular, reasonable
attorneys' fees and expenses incurred or actually disbursed in connection with
any claim, suit or proceeding brought against the Company or the Buyer) that
satisfies the following requirements:
(i) Its cause or origin predates the Date of Closing and;
(ii) It has not been booked or a provision has not been
made adequately in the Financial Statements of the Company.
(b) The aggregate amount of Damages payable by the Sellers
shall be determined on the basis of the following:
(i) The aggregate amount due shall be equal to any damages
effectively incurred by the Buyer or the Company, after deduction of any tax
benefit or relief relating to such Damage that can be effectively taken by the
Company or the Buyer;
(ii) The amount to which the Buyer or the Company might
otherwise be entitled under the Sellers' indemnification obligation shall be
reduced where and to the extent of the net amount of any indemnity paid under
any insurance policy to the Company or the Buyer in respect of such Damages;
(iii) No indemnity shall be due by the Sellers in respect
of any tax audit or claim (other than with respect to penalties or interest
arising therefrom) which only modifies the tax period during which a deductible
charge or amortisation may be taken, or in respect of any amount deductible or
recoverable for VAT, except if such VAT is not deductible or recoverable and
except with respect to penalties, fines or interests arising therefrom;
(iv) Any supplement of asset or reduction of liabilities
of the Company originating before the Date of Closing compared to these shown in
the Financial Statements as of June 30, 1997 shall be deducted from the amount
of Damages;
(v) Any amount due by the Buyer as a result of the
provisions of Article 3 shall be offset against the amount of the
indemnification payable by the Sellers under this Article 5.
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(vi) The maximum indemnification payable by the Sellers to
the Buyer under this Article 5 shall be limited to 4,800,001.25 US dollars,
which is the Purchase Price Shares as determined based on the quoted price at
Nasdaq of the shares of Buyer's common stock at the close of the trading day on
July 10, 1997 of 7.75 US dollars a share.
ARTICLE 6
GENERAL PROVISIONS
6.1. Amendment and Waiver. No amendment of any provision of
this Agreement shall in any event be effective, unless the same shall be in
writing and signed by the parties hereto. Any failure of any party to comply
with any obligation, agreement or condition hereunder may only be waived in
writing by the other parties. No failure by any party to take any action against
any breach of this Agreement or default by the other parties shall constitute a
waiver of such party's right to enforce any provision hereof or to take any such
action.
6.2. Dispute Resolution.
(a) Any dispute, controversy or claim arising out of or in
connection with this Agreement or the breach, termination or validity thereof (a
"Dispute"), shall be finally settled by arbitration in accordance with this
Article 6.2. The arbitration shall be held in Paris, France. The arbitration
proceedings shall be conducted in French and English (documents and testimony
may be provided in either language), and the award shall be rendered in the
French language. The arbitration proceedings and the award shall be kept
confidential unless disclosure is necessary in actions to enforce an arbitral
award and actions seeking interim or other provisional relief in any court of
competent jurisdiction to enforce such award or this Article 6.2.
(b) In case of a Dispute, the party deciding to resort to
arbitration, (whether the Sellers on the one hand or the Buyer on the other
hand), shall inform the other party by registered letter return receipt
requested sent to its address set forth in Article 6.5, indicating the name of
the arbitrator designated by it. The other party shall have a period of 15 days
from receipt of the above-mentioned letter to proceed with the nomination of a
second arbitrator. In the event of failure to do so within this time period, the
President of the Commercial Court of Paris will do so at the request of the
first party to so request, ruling as a judge in summary proceedings. The two
arbitrators thus designated shall name a third arbitrator within a period of 15
days from the date of appointment of the second arbitrator. In the event of
failure of the arbitrators to agree upon a third arbitrator, this person will be
named by the President of the Commercial Court of Paris, who will do so at the
request of the first party to so request, ruling as a judge in summary
proceedings. The third arbitrator thus appointed will chair the arbitral panel.
In case an arbitrator withdraws or is otherwise prevented from acting, he will
be replaced following the same method of nomination as that used for the
arbitrator who withdraws or is prevented from acting, and this shall
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be done within a period of one month from his being prevented from acting or his
withdrawal. The arbitrators may not be affiliated in any way with the parties or
their respective accountants or legal counsel. Each arbitrator shall be fluent
in English and French.
(c) Subject to the provisions of this Article 6.2, the
arbitrators shall conduct the arbitration in accordance with such procedural and
evidentiary rules as they may determine and they shall be entitled to hire such
experts (such as appraisal firms or certified public accountants) as they may
deem appropriate in view of the nature of the dispute submitted to them. The
arbitrators shall give written reasons for their award.
(d) The hearing shall be held no later than 120 days following
the appointment of the third arbitrator and the award shall be rendered no later
than 30 days following the close of the hearing, by a majority vote of the
arbitrators who shall not be entitled to decide "ex aequo et xxxx".
(e) The parties hereto hereby waive any rights of application
or appeal to a court tribunal of competent jurisdiction to the fullest extent
permitted by law in connection with any question of law arising in the course of
the arbitration or with respect to any award made, except for actions to enforce
an arbitral award and actions seeking interim or other provisional relief in any
court of competent jurisdiction.
(f) The award shall be final and binding upon the parties
hereto, and shall be the sole and exclusive remedy between the parties regarding
any claims, counterclaims, issues, or accounting presented to the arbitrator.
Judgment upon any award may be entered in any court having jurisdiction.
(g) Any monetary award shall be made and promptly payable in
U.S. dollars or French francs free of any tax, deduction or offset, and the
arbitrator shall be authorized in its discretion to grant pre-award and
post-award interest at commercial rates. Any costs, fees, or taxes incident to
enforcing the award shall, to the maximum extent permitted by law, be charged
against the party resisting such enforcement.
(h) This Agreement and the rights and obligations of the
parties hereto shall remain in full force and effect pending the award in any
arbitration proceeding hereunder.
(i) At the request of either party, the arbitrators shall
adopt procedures for the arbitration that permit oral examination and oral
cross-examination of witnesses.
(j) All notices by one party hereto to the other in connection
with the arbitration shall be in accordance with the provisions of Article 6.5
hereof.
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(k) This agreement to arbitrate shall be binding upon the
successors and assigns of each party hereto.
6.3. Broker's and Finder's Fees. The Sellers hereby represent
and warrant to Buyer, and Buyer hereby represents and warrants to Sellers, that
no Person or entity is entitled to receive any investment banking, brokerage or
finder's fee or fees for financial consulting or advisory services in connection
with this Agreement or the transactions contemplated hereby.
6.4 Legal fees. Each party will bear its own legal fees and
expenses in connection with the transactions contemplated by this agreement.
6.5. Notices. All notices, requests and other communications
hereunder shall be in writing and shall be deemed given if delivered personally,
facsimiled (which is confirmed) or mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) To the Buyer:
INTEGRATED SURGICAL SYSTEMS, Inc.
000, Xxxx Xxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxx, 00000 XXX
Attention: Xxxxxx XXXXXXX
Facsimile NO.: (000) 000 00 00
with a copy to:
SNOW XXXXXX XXXXXX P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, X.X. 00000-0000
Attention: Xxxx XXXXXX
Facsimile No.: (000) 000 00 00
(b) For purposes of the performance of obligations under this
Agreement, the Sellers designate Xx. Xxxxxx XXXXXXX and Xx. Xxxxxxx-Xxxxx XXXXXX
as their sole agents (the "Agents"), authorized to represent the Sellers in any
of the rights or obligations and with capacity to act jointly or individually.
All notices, requests and other communications, in whatever form, pursuant to
this Article, shall be addressed only to the Agents at:
Xx. Xxxxxx XXXXXXX
00, xxxxxx xx Xxxxxxx Xxxxxx
00000 Xxxxx, Xxxxxx,
Facsimile No: 33 1 42 30 72 44
Xx. Xxxxxxx-Xxxxx XXXXXX
Xxxxx xx Xxxxxxxx 0,
00
00
0000 Xx Xxxxxxx, Xxxxxxxxxxx,
Facsimile No: 41 21 845 14 02
6.6. Entire Agreement; Binding Effect. This Agreement and the
documents referred to herein (a) constitute the entire agreement and supersede
all other agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof and (b) shall not be assigned
by either party (by operation of law or otherwise) without the prior written
consent of the other party, except that Buyer may assign, in its sole
discretion, any of its rights, interests and obligations hereunder to any
affiliate.
6.7. Applicable Law. This Agreement shall be governed by and
be construed in accordance with French law without reference to its conflicts of
laws principles except to the extent that French conflicts of laws principles
would apply United States federal and state securities laws and the corporation
law of the State of Delaware to questions regarding the issuance and
registration of the shares of Buyer's common stock.
6.8. Severability. In case any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
terms, provisions, covenants or restrictions, or of such term, provision,
covenant or restriction in any other jurisdiction, shall not in any way be
affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the date first written above.
INTEGRATED SURGICAL SYSTEMS, Inc.
/s/ Xxxxxx XXXXXXX /s/ Xxxxxxx XXXXX
-------------------------------- --------------------------------
Name: Xxxxxx XXXXXXX Xxx. Xxxxxxx XXXXX
Title: President
and Chief Executive Officer
/s/ Xxxxxxxx XXXXX /s/ Xxxxxx XXXXXXX
-------------------------------- --------------------------------
Xx. Xxxxxxxx XXXXX Xx. Xxxxxx XXXXXXX
/s/ Xxxxxx XXXXX /s/ Xxxx-Xxx XXXXXXXX
-------------------------------- --------------------------------
Xx. Xxxxxx XXXXX Xx. Xxxx-Xxx XXXXXXXX
/s/ Xxxxxxx XXXXXX /s/ Xxxxxx XXXXXXXX
-------------------------------- --------------------------------
Xx. Xxxxxxx XXXXXX Xx. Xxxxxx XXXXXXXX
(by power of attorney)
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/s/ Georges-Xxxxx XXXXXX /s/ Xxxx XXXXXXXXX
-------------------------------- --------------------------------
Xx. Xxxxxxx-Xxxxx XXXXXX Xx. Xxxx XXXXXXXXX
(by power of attorney)
/s/ Pierre Xxxxxx XXXXXXXXXX /s/ Xxxxx XXXXXXX
-------------------------------- --------------------------------
Xx. Xxxxxx Xxxxxx XXXXXXXXXX Xx. Xxxxx XXXXXXX
(by power of attorney) (by power of attorney)
/s/ Xxxxx XXXXXXX /s/ Xxxxxxx XXXXXXX
-------------------------------- --------------------------------
Xx. Xxxxx XXXXXXX Xx. Xxxxxxx XXXXXXX
(by power of attorney) (by power of attorney)
/s/ Xxxxxxx-Xxxxx AUDEMARS /s/ Xxxxxxx XXXX
-------------------------------- --------------------------------
Mr. Xxxxxxx-Xxxxx AUDEMARS Xx. Xxxxxxx XXXX
(by power of attorney)
GEMED SA
/s/ Georges-Xxxxx XXXXXX
--------------------------------
Name: Georges-Xxxxx XXXXXX
Title: President Directeur
General
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LIST OF ANNEXES
Annex A Powers of attorney
Annex 1.4 (j) Legal opinion of Counsel to the Sellers
Annex 2.1 Constitutive Documents
Annex 2.6 Financial Statements
Annex 2.11 Two Certificates of recordation of liens
Annex 2.12 Intellectual and Industrial Property
Annex 2.13 Material Contracts
Annex 2.13 (c) Agreements with ANVAR of July 10, 1996 (one
agreement) and March 25, 1997 (two agreements)
Annex 2.13 (d) Loan agreement with Banque Populaire of November
3, 1995, loan agreement with Banque Populaire
and with Societe Generale of July 10, 1996
and loan agreement with Societe Generale of
March 24, 1997
Annex 2.13 (d) Grant from COFACE dated October 23, 1995
Annex 2.13 (f) Employment contracts of all the employees of the
Company
Annex 2.13 (g) Lease agreement in Meylan
Annex 2.14 List of the largest customers of the Company in
terms of sales for the six months ended June 30, 1997
as well as a list of the ten largest suppliers
Annex 2.20 Regulatory authorizations
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