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Exhibit 2.1
SALE OF SHARES AND CLAIMS AGREEMENT
between
GEMINI HOLDINGS PLC
and
THE MINORITY VENDORS
and
THE HOLDERS
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2(12)
TABLE OF CONTENTS
1 PARTIES ............................................................... 3
2 PREAMBLE .............................................................. 3
3 DEFINITIONS AND INTERPRETATIONS ....................................... 3
4 SALE AND PURCHASE OF THE MINORITY SHARES AND THE MINORITY CLAIMS ...... 5
5 PURCHASE PRICE ........................................................ 6
6 CLOSING ............................................................... 6
7 WAIVER ................................................................ 6
8 REPRESENTATIONS AND WARRANTIES OF THE MINORITY VENDORS ................ 6
9 INDEMNIFICATION ....................................................... 7
10 FURTHER ASURANCE ...................................................... 8
11 CONFIDENTIALITY; ANNOUNCEMENTS ........................................ 8
12 ASSIGNMENT ............................................................ 9
13 NOTICES ............................................................... 10
14 AMENDMENTS ............................................................ 11
15 HEADINGS .............................................................. 11
16 ANNULMENT OF PROVISIONS ............................................... 11
17 MISCELLANEOUS ......................................................... 11
18 CONDITIONS PRECEDENT .................................................. 11
19 GOVERNING LAW AND ARBITRATION PROCEDURES .............................. 12
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SALE OF SHARES AND CLAIMS AGREEMENT
1 PARTIES
1.1 Gemini Holdings Plc, registered in England with number 3377251, whose
registered office is at 162, Science Park, Milton Road, Cambridge CB4
OGH, United Kingdom, hereinafter referred to as the "Purchaser".
1.2 The persons and entities listed in Appendix 1 hereto, hereinafter
collectively referred to as the "Minority Vendors".
1.3 The persons and entities listed in Appendix 2 hereto but not being
Minority Vendors.
2 PREAMBLE
2.1 The Majority Vendors and the Minority Vendors are the owners of all of
the Shares in and have the benefit of all of the Claims against Eurona
Medical AB, co. reg no 556512-6298, a company incorporated under the
laws of Sweden (hereinafter referred to as the "Company"), having a
registered share capital of SEK 1,045,232 divided into 1,045,232 shares
with a nominal value of SEK 1 each.
2.2 The Purchaser has agreed to purchase and the Minority Vendors have
agreed to sell the Minority Shares and the Minority Claims on the terms
and conditions set out in this Agreement.
3 DEFINITIONS AND INTERPRETATIONS
3.1 In this Agreement (including the Appendices hereto) the following terms
and expressions shall have the meanings set out below
"Agreement" means this Sale of Shares and
Claims Agreement, together with
all Appendices hereto;
"Appendix; Appendices" means the Appendices to this
Agreement;
"Claims" means all claims which any of the
Minority Vendors may have against
the Company on the Closing Date or
at a later date arising out of
circumstances present on the Closing
Date, founded on any (i) zero coupon
loan notes; (ii) staff options
(sw: "personaloptioner"); (iii)
warrants and rights to subscribe
for shares in 8 June, 1999 new
issue; and (iv)
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rights to subscribe for new shares
in accordance with commitments
from certain Majority Vendors;
"Closing" means the consummation and
completion of the sale of the Shares
and of the benefit of the Claims at
the Closing Date in accordance with
the provisions of clause 5 below;
"Closing Date" means 17 December, 1999;
"Gemini Shareholders Agreement" means the Shareholders Agreement
relating to Phenomix PLC entered
into between GeneLink Holdings
Limited and others, on the one
side, and Phenomix PLC on the
other side, on December 5, 1997.
"Holders" means the persons and entities set
out in Appendix 2;
"Majority Claims" means the Claims held by the
Majority Vendors as set out
opposite the names listed in
Appendix 3;
"Majority Shares" means the Shares held by the
Majority Vendors as set out
opposite the names listed in
Appendix 3;
"Majority Vendors" means the persons and entities set
out in Appendix 3;
"Minority Claims" means the Claims held by the
Minority Vendors as set out
opposite the names listed in
Appendix 1;
"Minority Shares" means the Shares held by the
Minority Vendors as set out
opposite the names listed in
Appendix 1;
"Minority Vendors" means the persons and entities set
out in Appendix 1;
"Promises" means the promises by the Company
to issue zero coupon loan notes as
set out opposite the names in
Appendix 2;
"Purchase Price" means the price set out in clause
5 below;
"Shares" means 1,045,232 shares in the
Company
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each with a nominal value of SEK 1;
"Warranties" means the warranties and
representations set out in clause
8 below;
"Value I" means (i) the quoted price [trading
bid price] (SW: KOPKURS) of each
Minority Vendor's Gemini Shares at
the date occurring two (2) trading
days after a claim for
indemnification is made in
accordance with clause 9; or (ii)
if a Minority Vendor has disposed of
his Gemini Shares before a claim is
made, the purchase price; or (iii)
if the Minority Vendor has partially
disposed of his Gemini Shares before
a claim is made, the aggregate of
(i) and (ii);
"Value II" means the purchase price actually
received by each Minority Vendor
for his Gemini Shares at a sale
made in accordance with the
Gemini Shareholders Agreement and
the Purchasers articles of
association;
"Vendors" means the Majority Vendors and
the Minority Vendors collectively
4 SALE AND PURCHASE OF THE MINORITY SHARES AND THE MINORITY CLAIMS
4.1 Subject to the terms of this Agreement, each of the Minority Vendors
agree to sell to the Purchaser the number of the Minority Shares and the
benefit of the Minority Claims as set out opposite each Minority
Vendor's name in Appendix 1 on the Closing Date and the Purchaser agrees
to purchase the Minority Shares and the benefit of the Minority Claims
on the same date.
4.2 The Minority Shares and the benefit of the Minority Claims shall be sold
free from liens and encumbrances and together with all benefits and
rights attaching thereto.
4.3 The Purchaser shall not be obliged to complete the purchase of any of
the Shares or the benefit of any of the Claims unless the purchase of
all of the Shares and of the benefit of all of the Claims is completed
simultaneously.
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5 PURCHASE PRICE
5.1 The Purchase Price for the Minority Shares and the benefit of the
Minority Claims shall be satisfied by the issue by the Purchaser of the
aggregate number of C Preferred Ordinary Shares of GBP 1 (one) each in
the Purchaser ("the Gemini Shares") set out in Appendix 1, which shall
be delivered to the Minority Vendors in the proportions set out opposite
their respective names In Appendix 1.
5.2 Sub-clause 5.1 shall not apply with respect to Ap-fonden, sjatte
fondstyrelsen which shall receive a cash consideration in the
amount of SEK one hundred and sixty five thousand (165,000) as
full compensation for the transfer of its Minority Shares and
Minority claims.
6 CLOSING
Closing shall, unless otherwise agreed in writing between the parties,
take place immediately upon the execution of this Agreement on the
Closing Date at the offices of CMS Tisell Advokatfirma AB.
At the Closing each Minority Vendor shall in exchange for the number of
Gemini Shares set out opposite his name in Appendix 1, deliver to the
Purchaser the share certificates representing his respective number of
the Minority Shares and any instrument pertaining to the Minority
Claims, all of which shall be duly endorsed.
7 WAIVER
At the Closing each Holder of Promises unconditionally and irrevocably
waive his entire rights related to the Promises. The waiver is
prevailing against each and everybody and can therefore also be asserted
by the Company.
8 REPRESENTATIONS AND WARRANTIES OF THE MINORITY VENDORS
Except for the Warranties, the Minority Shares and Minority Claims are
sold on an "as is" basis.
The Minority Vendors represent, warrant and agree, as of the Closing
Date that the following statements in this clause 8 are true and correct
in all respects.
8.1 Capacity
Each Minority Vendor has obtained all necessary corporate and other
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consents and approvals in relation to the performance of this Agreement
and, accordingly, has full power to enter into and perform this
Agreement, which constitutes (or will when executed constitute) binding
obligations on each Minority Vendor in accordance with its terms.
8.2 Ownership of Stock
Each Minority Vendor is the owner of record of the number of Shares as
listed opposite his name in Appendix 1 hereto, free and clear of all
liens, encumbrances, restrictions and claims of any kind; each Minority
Vendor has full legal right, power and authority to enter into this
Agreement and to sell, assign, transfer and convey the Shares so owned
by him pursuant to this Agreement.
8.3 Claims
Each Minority Vendor is the holder of the Claims listed opposite his
name in Appendix 1 hereto, free and clear of all liens, encumbrances and
claims of any kind; each respective Minority Vendor has full legal
right, power and authority to enter into this Agreement and to sell,
assign, transfer, waive and convey the Claims so held by him pursuant to
this Agreement; each Minority Vendor has no further Claims than the ones
listed in Appendix 1.
9 INDEMNIFICATION
9.1 In the event of a deviation from and/or a breach of any of the
Warranties, the Minority Vendors shall severally and not jointly pay to
the Purchaser, on a pro rata basis to each Minority Vendor's
consideration in accordance with clause 5, the aggregate of:
9.1.1 an amount equal to any loss or liability suffered or incurred by the
Purchaser and/or the Company as a result of any Warranty being breached
or untrue or misleading; and
9.1.2 all costs, expenses and disbursements incurred by the Purchaser and/or
the Company as a result of any Warranty being breached or untrue or
misleading.
9.2 An indemnity to be paid pursuant to sub-clause 9.1 hereof shall be
payable from the first SEK.
9.2.1 The indemnity to be paid by each Minority Vendor (exclusive of any legal
fees or court costs) shall not exceed the lower sum of
(i) * SEK distributed between each of the
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
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8(12)
Minority Vendors on a pro rata basis to each Minority Vendor's
consideration in accordance with clause 5; or
(ii) if the Purchaser is quoted on a stock exchange when a claim is
made: Value I; or
(iii) if the Purchaser is not quoted on a stock exchange when a claim
is made: Value II.
For avoidance of doubt it should be clarified that each Minority
Vendor's indemnity shall be limited to each Minority Vendor's portion of
the consideration in accordance with clause 5.
9.3 No claim may be brought by the Purchaser against the Minority Vendors
unless notice in writing of any such claim, accompanied by reasonable
particulars thereof specifying the nature of the breach giving rise to
the claim and, so far as practicable, the amount claimed in respect
thereof, has been given to the Minority Vendors not later than twelve
(12) months after the Closing Date. The Purchaser is under no obligation
to bring claims under the Warranties against the Minority Vendors at any
time before the expiry of the twelve month period.
9.4 A breach of this Agreement which is capable of remedy shall not entitle
the Purchaser to compensation unless the Minority Vendor in breach is
given written notice of such breach and such breach is not fully
remedied within sixty (60) days after the date on which such notice is
served on the Minority Vendors.
10 FURTHER ASSURANCE
The Minority Vendors shall, from time to time on being required to do so
by the Purchaser, promptly and at the cost and expense of the Minority
Vendors do or procure the doing of all such acts and/or execute or
procure the execution of all such documents in a form satisfactory to
the Purchaser as the Purchaser may reasonably consider necessary for
giving full effect to this Agreement (or to such parts of it as remain
operative after termination) and securing to the Purchaser the full
benefit of the rights, powers and remedies conferred upon the Purchaser
in this Agreement.
11 CONFIDENTIALITY; ANNOUNCEMENTS
11.1 The Minority Vendors severally undertake with the Purchaser, and the
Purchaser undertakes with the Minority Vendors, to keep confidential
(except as expressly provided in this Agreement) at all times after the
date of this Agreement, and not directly or indirectly reveal, disclose
or use for his or its own or any other purposes, any confidential
information received
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or obtained as a result of entering into or performing, or supplied by
or on behalf of a party in the negotiations leading to, this Agreement
and which relates to:
11.1.1 the negotiations relating to this Agreement;
11.1.2 the subject matter and/or provisions of this Agreement; or
11.1.3 (in the Minority Vendors' case) the Purchaser or (in the Purchaser's
case) the Minority Vendors.
11.2 The Prohibition in sub-clause 11.1 does not apply if:
11.2.1 the information was in the public domain before it was furnished to the
relevant party or, after it was furnished to that party, entered the
public domain otherwise than as a result of (i) a breach by that party
of this clause or (ii) a breach of a confidentiality obligation by the
discloser, where the breach was known to that party; or
11.2.2 disclosure is necessary in order to comply with applicable legislation,
regulatory requirements or to obtain tax or other clearances or consents
from any relevant taxation authority; or
provided that any such information disclosable pursuant to sub-clause
11.2.2 shall be disclosed (unless such consultation as prohibited by
applicable law or regulatory requirements) only after consultation with
the Purchaser or the Minority Vendors (as the case may be).
11.3 No party shall make any press release or other public announcement in
connection with any of the transactions contemplated by this Agreement
except:
11.3.1 an announcement in the agreed form or in any other form agreed by the
Purchaser and the Majority Vendors; or
11.3.2 any announcement required by any applicable law or regulatory
requirements to which the party is subject (including the London Stock
Exchange Limited).
12 ASSIGNMENT
12.1 The Purchaser is permitted to assign the benefit of, and any of its
rights under, this Agreement without restrictions.
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12.2 None of the Minority Vendors may assign, transfer, charge or deal in any
way with the benefit of, or any of their respective rights under or
interest in, this Agreement except in accordance with a prior written
waiver given by the Purchaser.
13 NOTICES
13.1 Any communication to be given in connection with the matters
contemplated by this Agreement shall be in writing and shall either be
delivered by hand or sent by registered mail (Sw: "rekommenderat brev")
or facsimile transmission. Delivery by courier shall be regarded as
delivery by hand. Such communication shall be sent to the address or the
facsimile number of the relevant party set our below or to such other
address or facsimile number as may previously have been communicated to
the sending party in accordance with this clause.
Minority Vendors Purchaser
To the addresses set To the company secretary of the Purchaser
out in Appendix 4 162, Science Park, Milton Road,
Cambridge CB4 OGH, United Kingdom
FAX: +44 1223 435301
13.2 A communication shall be deemed to have been served:
13.2.1 if delivered by hand at the address referred to above at the time of
delivery;
13.2.2 if sent by registered mail to the address referred to in that
sub-clause, at the expiration of two days after the time of posting; and
13.2.3 if sent by facsimile to the number referred to in that sub-clause, at
the time of completion of transmission by the sender.
13.3 In proving service of the communication, it shall be sufficient to show
that delivery by hand was made or that the envelope containing the
communication was properly addressed and posted as a registered mail or
that the facsimile was dispatched and a confirmatory transmission report
received.
13.4 A Party may notify the other Parties of a change to its name, address or
facsimile number for the purposes of sub-clause 13.1 provided that such
notification shall only be effective on the date specified in the
notification as the date on which the change is to take place or if no
date is specified or the date specified is less than five days after the
date on which notice is deemed to have been served, the date falling
five days after notice of any
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such change is deemed to have been given.
14 AMENDMENTS
Amendments to this Agreement must be in writing and signed by the
Parties to be binding.
15 HEADINGS
The division of the Agreement into different sections and the inclusion
of headings will not affect the interpretation of this Agreement.
16 ANNULMENT OF PROVISIONS
If any provision in this Agreement or part thereof is declared null and
void, the Agreement as a whole will not be annulled as long as the
Agreement remains significant without the annulled provision or part. If
an annulment significantly affects one party's benefits from or
performance based on this Agreement, a party that considers itself
disadvantaged is entitled to initiate negotiations with the other
parties with the aim of restoring the balance of the Agreement through
reasonable modification of other provisions in the Agreement.
17 MISCELLANEOUS
By the signing of this Agreement each Minority Vendor, except
Ap-fonden sjatte fondstyrelsen, confirms his adherence to the Gemini
Shareholders Agreement and that they shall vote in any meeting of the
Purchaser's shareholders in accordance with the majority of the current
shareholders in the Purchaser. Furthermore, each Minority Vendor
confirms that any shareholders agreement relating to the shareholding
in the Company entered into by them is immediately terminated without
pertaining rights for any of the parties thereto.
18 CONDITIONS PRECEDENT
This Agreement is conditional upon
(i) each Minority Vendor fulfilling his obligations according to
clause 6; and
(ii) the purchase by the Purchaser of the Majority Shares and all the
benefits of the Majority Claims is completed on the Closing
Date.
If any of these conditions is not satisfied, the Purchaser is entitled
to cancel this Agreement in relation to all of the Minority Vendors,
without any
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liability of any kind for the Purchaser.
19 GOVERNING LAW AND ARBITRATION PROCEDURES
19.1 This Agreement as governed by the substantive laws of Sweden.
19.2 Any dispute, controversy or claim arising out of or in connection with
this Agreement, or the breach, termination or invalidity thereof, shall
be finally settled by the competent Swedish courts, Uppsala tingsratt
(Uppsala District Court) being the court of first instance.
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The parties have executed this Agreement with Appendices 1-3 as of this date in
three (3) original copies, of which each of the Purchaser, Gunnar Mattsson and
Eugene Steiner have taken one each.
Stockholm 17 December, 1999
GEMINI HOLDINGS PLC
/s/ [ILLEGIBLE] /s/ Gunnar Mattsson
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Gunnar Mattsson for and on behalf of all
the Minority Vendors and Holders except
the ones listed below
/s/ Eugene Steiner
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Eugene Steiner for and on behalf of
Visionolis AB, Malmsten Invest AB,
Forsakringsbranschens Pensionskassa and
Ap-fonden, sjatte fondstyrelsen.
