EXHIBIT 10.4
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SHARE PURCHASE AGREEMENT
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BETWEEN THE UNDERSIGNED:
XXXXX-XXXXX XXXXX-LANDERCY,
residing 5, ter xxx Xxxxxxx, 00000 Xxxxxxxx Xxxxxxxxxxx, Xxxxxx,
hereinafter referred to as "MPLL",
OF THE FIRST PART,
AND:
BIOSEPRA INC.,
a company organized under the laws of Delaware, having its registered
office at 000 Xxxxx Xxxxx, Xxxxxxxxxxx, XX 00000, Xxxxxx Xxxxxx of
America,
represented by Xx. Xxxx-Xxxxx Xxxxx,
hereinafter referred to as "BIOSEPRA",
OF THE SECOND PART.
RECITALS:
A) At the date hereof MPLL holds 9,940 shares representing 99.4% of the
capital and voting rights in Biosphere Medical SA (the "Company"), a
French SOCIETE ANONYME with a share capital of FF. 1.000.000,
divided into 10,000 shares of FF. 100 each, having its registered
office at Zone Industrielle de Louvres, Xxx xx xx Xxxxxxxxxxx, 00000
Xxxxxxx, registered at the Registre du Commerce et des Societes of
Pontoise under no. 418.584.033 and guarantees that she will hold 100%
of the shares in the Company on the Closing Date.
BIOSEPRA has informed MPLL of its Interest in acquiring 51% of the
shares of the Company hereafter referred to as the "Shares".
MPLL has informed BIOSEPRA of its desire to sell the 51% shares
BIOSEPRA is interested in acquiring.
The Parties have agreed to enter into this Agreement in order to define
the terms and conditions of their respective undertakings for the
purposes of and in connection with the sale and acquisition of the
Shares.
B) DEFINITIONS
"Agreement" means the present document.
"BIOSEPRA" means BIOSEPRA Inc, or any legal entity(ies) of the BIOSEPRA
Group substituted by BIOSEPRA Inc. in accordance with the provisions of
Article 1.1 hereinafter.
"Closing Date" means the date fixed for the Transfer of the Shares
under Article 1.2 hereof.
"Company" means Biosphere Medical SA.
"Confidential Information" means information concerning or relating to
all or any of the following matters relating to or connected with the
affairs of the Company details of which are not in the public domain:
the intellectual property and any other property of the Company and/or
the Subsidiaries in the nature of intellectual property or any other
know-how, technical processes, customer, client and supplier lists,
price lists, details of contractual arrangements and any other matters
concerning the business affairs, or finances of the Company or clients
or customers or other persons having dealings with the Company (however
stored).
"MPLL" means Xxxxx-Xxxxx Xxxxx-Landercy.
"Option" means the promise to sell the Remaining Shares granted to
BIOSEPRA by MPLL stipulated in Article 2.5.
"Parties" means BIOSEPRA and MPLL.
"Price" means the price mentioned in Article 1.3.1 hereafter.
"Promise" means the promise to buy the Remaining Shares granted by
BIOSEPRA to MPLL stipulated in article 2.6.
"Related Securities" means the securities defined in clause 2.5.4
hereafter.
"Remaining Shares" means the shares of the Company held by MPLL after
the Closing Date as defined in article 2.5 hereafter.
"Sales of the Company" means aggregate sales of Biosphere, increased by
any additional sales of Specialities as defined in the exclusive
license contract mentioned in article 1.3.1 hereafter realized
worldwide by BIOSEPRA and/or its affiliates, except for intra-group
sales.
"Shares" means the 5,100 shares of a par value of FF. 100 each in the
capital of the Company representing 51 % of the share capital which
MPLL has agreed to transfer to the BIOSEPRA under the Agreement.
The Exhibits form part of the Agreement.
The headings in this Agreement are for ease of reference only and shall
not affect the construction or interpretation of this Agreement.
References to persons shall include bodies corporate, unincorporated,
associations and partnerships.
References to the parties hereto include their respective successors in
title assigns and legal personal representatives.
ARTICLE 1: SALE
1.1 SALE OF THE SHARES
MPLL sells to BIOSEPRA and BIOSEPRA acquires from MPLL a number of
shares in the Company representing 51% of its capital and voting rights
under the terms and conditions set forth hereinafter.
Any legal entity(ies) of the BIOSEPRA Group may be substituted by
BIOSEPRA Inc. in the benefit of this Agreement as the purchaser of the
Shares, in whole or in part, by giving notice thereof to MPLL by
registered letter with an acknowledgment of receipt, or any equivalent
means, at the latest one day before the Closing Date, as defined in
Article 1.2 hereinafter. In the above mentioned notice, the buyer will
guarantee the commitments resulting from the Agreement of all
substituted persons.
The Shares are on the Closing Date, free of any pledge or other
security interest, option or other right in favor of third parties.
1.2 TRANSFER OF THE SHARES
The transfer of the Shares shall take place as of this date hereinafter
referred to as the "Closing Date". The transfer of the shares shall
occur at the latest 60 days as of the date of signature of the present
Agreement.
1.3 PRICE OF THE SHARES
1.3.1 The Parties have agreed that the Price for the Shares shall be equal to
FF. 1 (one French franc). The Price is justified by the fact that,
amongst others, at the Closing Date, BIOSEPRA will grant to the Company
an exclusive license pertaining to patents and technology relating to
embolization microbeads and will transfer its technology in connection
with vascular applications which shall strengthen substantially the
activity of the Company, and the Company will benefit from synergies
with BIOSEPRA group.
1.3.2 On the Closing Date BIOSEPRA shall pay to MPLL the Price (by means of a
bank check or by wire transfer).
1.4 DOCUMENTS SUPPLIED ON THE CLOSING DATE
MPLL delivers the following, documents to BIOSEPRA on the Closing Date:
(i) "Ordre de mouvement" (stock transfers) relating to 51% of the
Shares and "Ordres de mouvement" with respect to minority
shareholders, i.e. Xx. Xxxx Xxxxxxx, Mrs. Xxxxxx Ardouvin,
Mrs. Maryvonne Fallavier, Xxx. Xxxxxxx Xxxxxxxxxx, Mrs. Herve
and Mr. Angeloglou
(ii) the minutes of the general shareholders meetings of the
Company amending the Articles to create two classes A and B of
shares of the Company and appointing Messrs. Xxxx-Xxxxx Xxxxx,
Xxxxxx Xxxxxxxxx and Xxxx Xxxxxxx as directors;
(iii) the resignation letters from Xx. Xxxx Xxxxxxx, Mrs.
Xxxxx-Xxxxx Xxxxx-Landercy, Mrs. Claire Ardouvin and Mrs.
Maryvonne Fallavier, containing their resignations from their
positions as directors of the Company and stating that the
Company does not owe them any amount for any reason
whatsoever;
(iv) the statutory auditors' letters of resignation from the
Company;
(v) the minutes of the meeting of the board of directors of the
Company at which the intended sale by MPLL to BIOSEPRA was
approved;
(vi) the minutes of the meeting of the board of directors of the
Company appointing Xx. Xxxx-Xxxxx Xxxxx as chairman of the
board, and MPLL as "DIRECTEUR GENERAL NON ADMINISTRATEUR" and
as salaried Technology Manager (DIRECTEUR DES TECHNOLOGIES).
The following, agreements are also signed on the Closing Date:
(i) an exclusive license agreement between the Company and
BIOSEPRA relating to all of BIOSEPRA's patents and technology
relating to embolization microbeads, substantially in
accordance with the terms of the draft attached hereto in
EXHIBIT 1.4 duly signed;
(ii) the labor contract between MPLL and the Company in accordance
with the terms of the draft attached hereto in EXHIBIT 1.4
duly signed.
ARTICLE 2: COVENANTS OF MPLL AND BIOSEPRA
2.1 MPLL undertakes to and covenants with BIOSEPRA that she will not at any
time after the date of this Agreement:
(i) disclose or divulge to any person other than to officers or
employees of any BIOSEPRA's group member whose function it is
to know the same or to any of their professional advisers any
Confidential Information which may be within or have come to
its knowledge and it shall use its best endeavors to prevent
the publication or disclosure of any Confidential Information;
(ii) do or say anything which is likely or intended to damage the
goodwill or reputation of the Company or use the event of the
Sale of the Company to encourage any person to cease to do
business with the Company on substantially equivalent terms to
those previously offered or lead any person not to engage in
business with the Company.
2.2 Unless demanded by law or relevant administrative authority or to
enforce its performance and/or xxx for damages a defaulting party, it
is understood that no revelation or communication of any of the
provisions of this Agreement may be made by one of the Parties without
the written consent of the other.
2.3 MPLL hereby undertakes to and covenants with BIOSEPRA that she will not
as long as she remains a shareholder of the Company and for a period
starting the date she sells her last Remaining Share(s) in the Company
and lasting five years from that date, either on its own behalf or
jointly with or as manager, adviser, consultant or agent for any other
person directly or indirectly, in the field of embolization:
(i) approach, canvass, solicit or otherwise act with a view to
enticing away from or seeking in competition with any business
of the Company as carried on by the Company at any time the
custom of any person who has at any time been a customer of
the Company and during such period she shall not use her
knowledge of or influence over any such customer to or for her
own benefit or the benefit of any other person carrying on
business in competition with the Company or otherwise use its
knowledge of or influence over any such customer to the
detriment of the Company;
(ii) be engaged, concerned or interested howsoever in carrying on
any business worldwide if such business is in competition with
the business carried on at any time by the Company.
2.4 MPLL hereby undertakes to and covenants with BIOSEPRA that she will not
as long as she remains a shareholder of the Company and for a period
starting the date she sells her last Remaining Share(s) in the Company
and lasting five years from that date either on her own behalf or
jointly with or as manager adviser consultant or agent for any other
person directly or indirectly approach, canvass, solicit, engage or
employ or otherwise endeavor to entice away any person who shall be or
shall have been an employee officer or manager of the Company at any
time from and after the date of this Agreement.
2.5 PROMISE TO SELL THE REMAINING SHARES
MPLL holds just after the Closing Date 49% of the share capital of the
Company i.e.: 4,900 shares, hereafter referred to as the "Remaining
Shares".
2.5.1 MPLL hereby irrevocably promises to sell to BIOSEPRA all the Remaining
Shares (hereafter the "Option") at a price per share equal to the Sales
of the Company over the last period of 12 months ending at the end of
the month preceding the one during which the Option will be exercised
by BIOSEPRA, divided by the total number of shares in the Company at
that time, pursuant to the following schedule:
a) BIOSEPRA may exercise the Option granted to it hereabove by
MPLL on 70% of the Remaining Shares from the Closing Date
until the fifth anniversary of the Closing Date, i.e.,:
December 31, 2003.
b) BIOSEPRA may exercise the Option on 30% of the Remaining
Shares still held by MPLL from December 31, 2003 until
December 31, 2004.
In any case, the minimum price to be paid by BIOSEPRA for the total
Remaining Shares should not be less than 49 % of FF. 12,000,000 (twelve
million French francs).
BIOSEPRA may substitute to itself in the benefit of the Option any
affiliated company.
2.5.2 If the Option is exercised by BIOSEPRA, or any substituted company, the
Remaining Shares will be transferred free of any liens, charges,
privileges, guarantees, options or other rights in favor of third
parties.
MPLL irrevocably undertakes neither to transfer the Remaining Shares to
any third party before December 31, 2004, nor, for the same duration,
to grant to any third party a right of any nature whatsoever on the
Remaining Shares, such as, but not limited to, option, lien,
guarantee...
If the Option is exercised, the transfer of the Remaining Shares will
take place at the latest the 15th day following such exercise.
2.5.3 The Option stipulated in article 2.5 hereby and all its provisions will
also apply to:
(i) the shares, voting certificates and certificates of
investment;
(ii) the warrants, bonds, combined securities, options, rights and
other securities or titles which may give access, immediately
or in the future, directly or indirectly, whatever be the
importance or form of such access, to the capital, the profits
or to the votes at general meetings of the shareholders of the
Company.
All such items mentioned in (i) and (ii) being herein called the
"Related Securities", which at the date of exercise of the Option MPLL
may as a result of the Remaining Shares hold (or in which, at the date
of exercise, she may have rights to), in the Company or any other
company which might succeed to the Company by reason of any
restructuring, merger, modification of the capital, etc., without
modification to the price for the Remaining Shares mentioned in clause
2.5.1 above, except in the case where such Related Securities will have
been (or would be) granted to MPLL in consideration of contributions in
cash or in kind or by way of setting off of credit in which case, the
said price will be increased by the amounts actually contributed or
paid through setting off by MPLL.
2.6 If after December 31, 2003, MPLL still holds the totality or part of
the Remaining Shares and is still an employee of the Company or of any
of BIOSEPRA's affiliated companies, or has been dismissed for a cause
other than "FAUTE GRAVE" or "FAUTE LOURDE", or is deceased, she or her
successor as the case may be will benefit from BIOSEPRA of a promise
from the latter to purchase the Remaining Shares still held by her,
(hereafter the "Promise").
2.6.1 BIOSEPRA hereby irrevocably promises to buy from MPLL all the Remaining
Shares still held by MPLL.
MPLL may exercise the Promise granted to it hereabove by BIOSEPRA from
December 31, 2003 until December 31, 2004.
2.6.2 If MPLL exercises the Promise set forth in article 2.6 hereabove,
BIOSEPRA shall pay the Remaining Shares -or the prorata of the
remaining, shares still held thereof- at a price per share equal to the
Sales of the Company over the last period of 9 months ending at the end
of the month preceding the transfer of the Remaining Shares, divided by
the total number of shares in the Company at that time. In any case,
the minimum price paid by BIOSEPRA to MPLL for the Remaining Shares
still held by MPLL after December 31, 2003 shall not be less than 49%
of FF. 6,000,000 (or the prorata of such amount if BIOSEPRA has
exercised the Option on part of the Remaining Shares it being
understood that for the calculation of the prorata all the Remaining
Shares represents 49%).
BIOSEPRA may substitute to itself in the exercise of the Promise any
affiliated company. In case of substitution, BIOSEPRA will guarantee
the commitments resulting from the Promise of all substituted persons.
2.6.3 If the Promise is exercised by MPLL, the Remaining Shares will be
transferred free of any liens, charges, privileges, guarantees, options
or other rights in favor of third parties, and the transfer of the
Remaining Shares will take place at the latest the 15th day following
such exercise.
The Promise can be exercised by MPLL only for all the Remaining Shares,
and not part of them.
2.6.4 The Promise stipulated in article 2.6 hereby and all its provisions
will also, mutatis mutandis, apply to the Related Securities mentioned
in clause 2.5.4 hereabove, under the same terms and conditions save for
the reference to the price which will be the one stipulated in clause
2.6.2.
2.6.5 BIOSEPRA undertakes to cause the shareholders meeting of the Company to
appoint MPLL as a director ("ADMINISTRATEUR") at the board of the
latter as soon as legally possible after the Closing Date.
2.6.6 BIOSEPRA and MPLL will vote, at a shareholders meeting to be held as of
the Closing Date, for the modification of the by-laws of the Company to
create in particular two classes A and B of shares in compliance with
the terms and conditions set forth in the Shareholders Agreement
attached in Exhibit 2.6.7.
2.6.7 BIOSEPRA and MPLL shall sign a shareholders agreement in compliance
with Exhibit 2.6.7 (hereafter the "Shareholders Agreement"). The
Shareholders Agreement shall provide for the right for MPLL and
BIOSEPRA to appoint directors in proportion to their respective
percentage in the total share capital of the Company.
The Shareholders Agreement shall also grant to the directors appointed
by MPLL a right of veto of the following decisions :
- any change to the exclusive license contract mentioned in
article 1.3.1 hereto. However such contract may be terminated in
the event that the amount or amounts for which MPLL may be liable
for under this Agreement exceed the sum of FF. 100,000.
- change of the head office of the Company.
- guarantees ("AVALS" and "CAUTIONS") for an amount exceeding 1
million French francs, granted by the Company to the benefit of
companies other than the Company's affiliates.
The Shareholders Agreement shall be automatically terminated if and
when the Company is listed at the French "NOUVEAU MARCHE". The
Shareholders Agreement shall also be automatically terminated if and
when BIOSEPRA exercises the Option on 70% of the Remaining Shares
provided for in article 2.5.1 a) hereto.
2.6.8 BIOSEPRA shall irrevocably assign, worldwide and free of charge, all
its rights to its technology and patent portfolio for vascular
applications, including its recent patent application for spherical PVA
beads.
ARTICLE 3: REPRESENTATIONS AND WARRANTIES OF MPLL
3.1 SCOPE OF THE REPRESENTATIONS AND WARRANTIES
BIOSEPRA buys the Shares under the condition that MPLL makes the
representations and grants the warranties contained in the present
article 3.
The warranties and representations herein are stipulated for the
benefit of BIOSEPRA and they will remain valid for the duration
stipulated in this Agreement, even if BIOSEPRA resells some or all of
the Shares. MPLL hereby represents and warrants that they are true and
accurate on the date of this Agreement.
So far as MPLL is aware after careful consideration there are no facts
or considerations which are not disclosed in the Agreement and its
Exhibits which by their omission would or might:
(i) affect the import of the information contained therein; or
(ii) make any statement therein false or misleading; or
(iii) invalidate or qualify any assumption expressed to be made in
support of any statement therein; or
(iv) be material for disclosure either to BIOSEPRA or to a
potential buyer of the Shares being information which
discloses circumstances whereby the Company is or is likely to
be affected.
3.2 REPRESENTATIONS AND WARRANTIES
3.2.1 ACCURACY AND RELEVANCE OF THE INFORMATION GIVEN TO BIOSEPRA
All information represented in the Exhibits and all other information
contained in the present Agreement concerning the Company is true and
accurate.
No representation or warranty contained in this Agreement and its
Exhibits, which are an integral part thereof contains any untrue
statement or omits a fact necessary to make such representation or
warranty not misleading. MPLL has no knowledge of facts or
circumstances rendering any such information false, untrue or
misleading.
3.2.2 CAPACITY AND POWER OF MPLL
MPLL has all necessary power and authority to conclude and to execute
the Agreement. The Agreement represents a valid and binding obligation
of MPLL in accordance with its terms and does not violate or result in
a breach or default under any agreement or commitment to which MPLL or
the Company is a party or which is binding upon it.
Neither the Company nor MPLL is a party to, subject to, or bound by any
mortgage, deed of trust, indenture or other instrument or agreement or
by any judgment, order, writ, injunction, or decree of any court or
governmental body, and there is no provision in the Company's
organizational documents or, to the knowledge of MPLL, in any statutes,
rule or regulation, that would prevent or materially impair (i) the
execution, delivery or performance of this Agreement, or the agreements
contemplated hereby, (ii) BIOSEPRA's ability to exercise rights as a
controlling or majority shareholder of the Company, or (iii) the
carrying on or the right to carry on the business of the Company as it
is now constituted.
3.2.3 INCORPORATION OF THE COMPANY
The Company has been duly incorporated and properly formed, and its
articles of incorporation, as well as the manner in which it is
operating, are in accordance with all applicable laws and regulations.
3.2.4 SHARES AND PARTICIPATIONS OF THE COMPANY
All the shares of the Company have been issued in accordance with
applicable laws and regulations and are entirely paid-up and free of
any liens, charges, privileges, guarantees, options or other rights in
favor of third parties.
There exists no contract or commitment of any nature, whether signed or
unsigned, with a view to allocating or issuing shares, or giving rise
to any right of any person to buy or preempt, in whole or in part, the
shares of the Company.
The Company does not own, directly or indirectly, any holding in any
legal entity, grouping or partnership of whatever kind, including any
"SOCIETE DE PERSONNES", "SOCIETE CIVILE IMMOBILIERE", "G.I.E.", SOCIETE
DE PARTICIPATION", or in which the liability of the members or partners
is not limited to their ownership interest.
The Company has issued no priority shares, preferred shares, bonds
convertible into shares, exchangeable against shares or giving rights
to subscribe to shares. More generally, the Company has issued no
securities giving rights, by conversion, exchange, warrant,
reimbursement or in any other manner, to the distribution, immediately
or in due course, of shares for which purpose are or will be issued in
representation of amount of shares in the capital of the Company. No
issuing of any securities of the type described hereabove is currently
in progress.
3.2.5 TRANSFER AND OWNERSHIP OF THE SHARES
The Shares are on the Closing Date owned by MPLL, at its free disposal
without any restriction and represent 51% of the authorized legal
capital of the Company.
BIOSEPRA acknowledges that the transfer of the Shares may, if requested
by Guerbet SA, entail the early repayment by the Company of the loan
amounting to 3 million French francs granted by Guerbet SA by contract
dated April 29, 1998, which repayment is to be made within 6 months
after the change of control under the provisions of article 8 of the
loan agreement.
All the procedures relating to the transfer of the Shares at the
Closing Date which are necessary, in order that the transfer can take
place in compliance with all applicable laws and regulations at the
Closing Date, have been duly performed.
3.2.6 STATUTORY BOOKS
To the best of MPLL's knowledge:
- all accounting books, statutory books and files required by
applicable laws and regulations are maintained by and in the
possession of the Company, and contain information which is true
and correct and duly recorded in accordance with applicable
regulations and laws.
- all documents evidencing the ownership of the assets of the
Company and signed copies of all contracts entered into by it
which are currently in force, are essential to its activity, and
should be in their possession, are in the possession of the
Company.
3.2.7 OPTIONS, MORTGAGES AND OTHER GUARANTEES
There exists no option, mortgage, lien, pledge, or any other form of
guarantee or privilege in favor of third parties on all or any part of
the assets of the Company. No contract or commitment to grant any of
these rights or guarantees has been concluded. Neither the Company nor
its employees or representatives have received any claim from any
person claiming to benefit from any of the rights or guarantees
mentioned above.
3.2.8 COMPLIANCE WITH LAWS AND REGULATIONS
To the best of MPLL's knowledge:
- the Company has all material permits and authorizations necessary
for the ownership of its assets and for the conduct of its current
business. The Company has complied with all material laws,
regulations and customs applicable to such business, in particular
all regulations relating to labor regulations, environment
regulations, as well as all conditions in respect of the required
permits and authorizations.
- the Company is not bound to arrange measures which would require
new investments in order to comply with any of these laws or
regulations.
- there exists no event that might bring about the revocation or
suspension of any permits or authorizations held by the Company or
that might involve its liability or that of its directors or
employees, in particular by reason of the violation of regulations
relating to environmental law and labor law.
- the transfer of ownership of the Shares to BIOSEPRA will not bring
about the revocation or suspension of any permit or authorization
necessary for the conduct of the business of the Company.
- all information transmitted to governmental authorities are true
and accurate.
3.2.9 AGREEMENTS
to the best of MPLL's knowledge:
- the Company is not party to any one or more agreements or
commitments which are manifestly of an unusual nature and/or
duration or otherwise outside the normal course of business and
more specifically the Company is not subject to any
non-competition commitment or restriction from doing business
which it is legally capable of carrying on.
- there exists no contract or agreement entered into by the Company,
which includes a provision enabling the other contracting party to
terminate it (or to demand modification of the contractual
provisions) as a result of a change in the ownership of the
Company.
3.2.10 LOANS AND OTHERS
Complete and accurate information (in particular the amount, duration,
security...) relating to all loans, credit contracts, overdraft
agreements or other banking facilities of the Company in existence are
contained in EXHIBIT 3.2.10.
3.2.11 GUARANTIES
No security guarantee, sponsorship or comfort letter of any nature
given or incurred by the Company is in effect on the Closing Date.
3.2.12 PROFIT-SHARING AGREEMENT
The Company is not a party or has not agreed to be a party to any
agreement giving any third party any right to share in whole or in part
in its profits.
3.2.13 INSOLVENCY
No receiver ("ADMINISTRATEUR JUDICIAIRE") has been appointed to manage
all or any part of the assets or the business of the Company.
No request or declaration has been made with a view to the judicial
reorganization or judicial liquidation of the Company or with a view to
the dissolution and early liquidation of the Company.
The Company has not ceased making payments to creditors, is not
insolvent or unable to pay its debts.
3.2.14 LITIGATION
To the best of MPLL's knowledge, the Company is not engaged directly,
or through employees or/and directors, actual or former, in any
judicial criminal, administrative or arbitral proceedings, as plaintiff
or defendant, including by way of counterclaim.
There does not exist to MPLL's knowledge, after due inquiry in that
respect, any fact that would give rise to any proceeding against the
Company or against one of its directors, employees, or former directors
or employees for which the Company would be liable.
In particular, the Company is not a defendant to, and to MPLL's
knowledge is not threatened with, any lawsuit brought by customers or
third parties.
Furthermore, to MPLL's knowledge there has been no court or
administrative decision or order, and no time limit given by a
professional organization or supervisory authority, imposing on the
Company, an obligation which might in the future have unfavorable
consequences on the normal course of its business.
3.2.15 EMPLOYEES, REPRESENTATIVES OF THE COMPANY
The current employees of the Company, along with an indication of their
age and seniority, are listed in EXHIBIT 3.2.15. No binding promise to
hire any person has been granted by the Company and the Company has not
granted any loans to its employees.
3.2.16 REAL AND PERSONAL PROPERTY
The Company owns no real property. All personal property necessary to
its current business, except the property subject to the leasing
contracts which are listed in EXHIBIT 3.2.16, is fully owned by the
Company.
3.2.17 INTELLECTUAL PROPERTY
the Company owns or is entitled to use all patents and trademarks,
tradenames, processes, software, company name and more generally all
intellectual property rights, if any, that it uses the course of its
business, except what is mentioned in EXHIBIT 3.2.18.
None of these rights has been transferred in any way to any third party
or infringes the rights of any third party. The documentation
pertaining to such rights is contained in EXHIBIT 3.2.18.
3.2.19 INSURANCE
To the best of MPLL's knowledge:
- the Company is insured by policies in force, for which all
premiums have been paid when due and which cover under normal
conditions the risks regularly incurred by companies operating a
business similar to those of the Company. The Company has not
committed or omitted any act which might render null or
inoperative such insurance policies or which might bring about
their cancellation.
- there exists at present no lawsuit involving the application of
the Company's insurance policies, and no event has occurred which
might bring about such a lawsuit.
A description of the insurance contracts concluded by the Company is
contained in EXHIBIT 3.2.19.
3.2.21 TAX AND OTHER RETURNS
To the best of MPLL's knowledge, the Company has regularly filed all
required tax, Social Security and all administrative returns and has
paid or provided for all taxes, duties, levies and Social Security
charges, including any interest, fines or penalties relating thereto.
There is no current dispute with any government authority concerning
taxes, customs or Social Security charges and, to MPLL's knowledge,
there is no reason to believe any such dispute might arise.
3.3 INDEMNIFICATION
a) MPLL undertakes to pay to BIOSEPRA or to the Company, at
BIOSEPRA's option, a sum, covering all harmful consequences
duly suffered for BIOSEPRA and/or the Company as a result of
any failure to comply with, any omission or inaccuracy of any
one of the representations and covenants contained in this
Agreement.
b) It is understood that the amount of any sum due from MPLL to
BIOSEPRA and/or the Company, as the case may be, under clause
3.3 a) of this Agreement will be reduced by (i) the amount of
any insurance payment actually received by BIOSEPRA or the
Company in relation to any event giving rise to a claim by
BIOSEPRA hereunder (ii) elements likely to increase
liabilities and assets.
c) Any amount or amounts that MPLL may be liable to pay pursuant
to this Agreement shall not exceed the sum of FF. 49% of
FF. 6,000,000 except as regards the representations and
guarantees given by MPLL in articles 3.2.2., 3.2.3, 3.2.4 and
3.2.5.
Furthermore, the amount or amounts for which MPLL may be
liable under this Agreement shall only be payable if such
amount or amounts have reached the aggregate amount of FF.
100,000. This aggregate amount may be only subtracted once
from the amounts due to BIOSEPRA
d) All grounds likely to result in a call on the guarantee set
forth by this Agreement shall be notified by BIOSEPRA within
30 days from the moment BIOSEPRA is aware thereof. MPLL shall
have 21 days, either to acknowledge its acceptance of
BIOSEPRA's claim, or to communicate its disagreement. The lack
of response in this period of time shall be considered as an
acceptance of BIOSEPRA's claim by MPLL.
e) BIOSEPRA, acting on behalf of the Company, shall not enter
into a settlement agreement on any matters likely to entail
MPLLs' liability under this guarantee, without the approval of
MPLL, which approval shall not be unreasonably withheld.
Such approval shall be deemed to have been obtained if MPLL
fails to notify its opposition to the planned settlement
agreement within more than 21 days of receiving a registered
mail in which BIOSEPRA shall have given notice of its
intention so to proceed on the basis of explicit information.
3.4 DURATION OF THE GUARANTEE
All demands for payment (which can only be valued as a provisional
figure under this indemnification) under the Agreement in regard to
matters of a tax, administrative, Social Security nature or pertaining
to clauses 3.2.2 and 3.2.5 must be made by BIOSEPRA, even if only
provisionally, before the expiration of a period equal to the
applicable limitations provided by law plus three (3) months and, in
regard to any other matter, before January 1st, 2004.
3.5 PAYMENT
The payment of any sum due by MPLL in application of article 3 of the
Agreement shall be made, by means of an actual payment by MPLL to
BIOSEPRA, up to the amount of FF. 500,000 and exclusively by means of
set-off against any sum that BIOSEPRA owes to MPLL, in particular as
payment of the price of the Remaining Shares, with respect to any sum
due by MPLL exceeding the above mentioned FF. 500,000 threshold.
The payment of any sum due by MPLL to BIOSEPRA and/or the Company under
this Agreement (either pursuant to MPLL's acceptance of BIOSEPRA's
claim or arbitrator's award), subject to the provisions of the above
paragraph, shall be made within thirty (30) days of the payment by the
Company of any sum covered by this indemnification, supported by
appropriate justifying documents.
ARTICLE 4: MISCELLANEOUS PROVISIONS
4.1 WHOLE AGREEMENT
This Agreement constitutes the whole and unique agreement of the
parties on the matters it relates to. It replaces and cancels therefore
any prior contract or agreement, whether written or oral between the
parties on matters covered by this Agreement. This Agreement shall be
modified only in writing with the signature of both parties.
4.2 COSTS AND FEES
Each of the Parties shall bear, without entitlement to a refund from
the other, the costs incurred by it in connection with the preparation
and conclusion of this Agreement, including all expenses, fees and
disbursements for legal advice, auditors and other advisers instructed
by either of the Parties.
ARTICLE 5: GOVERNING LAW AND DISPUTES
Clause 2.2 of the Agreement shall not apply for the performance of article 5.
5.1 GOVERNING LAW
The Agreement is governed by, and shall be construed in accordance
with, French law.
5.2 DISPUTES
The parties agree to submit any and all disputes arising with respect
to the validity, interpretation or performance of this agreement to the
exclusive jurisdiction of Paris Commercial Court ("Tribunal de Commerce
de Paris") due to the commercial nature of the Agreement.
ARTICLE 6: NOTICES
All notices under this Agreement shall be sent by registered mail, return
receipt requested, and shall be deemed sent on the date of receipt or on the
date of mailing if preceded by transmission of the text of such notice by telex
or fax. Such notices shall be sent, until changed by notice given as indicated
above, to the following addresses:
- If MPLL to: Xxxxx Xxxxx Xxxxx-Landercy at her address
mentioned on the first page of this Agreement
- If BIOSEPRA to: BIOSEPRA Inc. at its head office mentioned on
the first page of this Agreement
Attention: Xxxx-Xxxxx Xxxxx
Done in Paris
On December 31st, 1998
In 2 originals
/S/ XXXXX-XXXX XXXXX LANDERCY /S/ XXXX-XXXXX XXXXX
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for MPLL for BIOSEPRA
