Exhibit 7.1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of October 31, 2000, by and between
Kleinwort Benson European Mezzanine Fund L.P., a limited partnership organized
under the laws of Bermuda (the "Seller"), and Sulzer Medica USA Holding Co., a
corporation organized under the laws of Delaware (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller own an aggregate of approximately 1,416,705 issued
and outstanding shares of common stock, par value $0.01 per share (the "Common
Stock"), of Tutogen Medical, Inc., a Florida corporation (the "Company"); and
WHEREAS, the Seller wishes to sell to the Purchaser one million
ninety-four thousand six hundred seventy (1,094,670) shares (the "Shares") of
Common Stock of the Company, and the Purchaser wishes to purchase from the
Seller the Shares, upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the Seller and the Purchaser
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Affiliate" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person.
"Agreement" or "this Agreement" means this Stock Purchase Agreement,
dated as of October 31, 2000, by and between the Seller and the Purchaser and
all amendments hereto made in accordance with the provisions of Section 8.10.
"Business Day" means any day that is not a Saturday, a Sunday or other
day on which banks are required or authorized by Law to be closed in the City of
New York.
"Closing" has the meaning specified in Section 2.03.
"Closing Date" has the meaning specified in Section 2.03.
"Common Stock" has the meaning specified in the recitals to this
Agreement.
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"Company" has the meaning specified in the recitals to this Agreement.
"Control" (including the terms "controlled by" and "under common
control with"), with respect to the relationship between or among two or more
Persons, means the possession, directly or indirectly or as trustee or executor,
of the power to direct or cause the direction of the affairs or management of a
Person, whether through the ownership of voting securities, as trustee or
executor, by contract or otherwise, including, without limitation, the
ownership, directly or indirectly, of securities having the power to elect a
majority of the board of directors or similar body governing the affairs of such
Person.
"Encumbrance" means (i) any security interest, pledge, mortgage, lien
(including, without limitation, tax liens), charge, encumbrance or adverse
claim, and (ii) any restriction arising out of any agreement to which the Seller
is a party, including, without limitation, any restriction on the voting,
transfer or other exercise of any attributes of ownership.
"Governmental Authority" means any United States federal, state or
local or any foreign government, governmental, regulatory or administrative
authority, agency or commission or any court, tribunal, or judicial or arbitral
body.
"Governmental Order" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any Governmental
Authority.
"Law" means any federal, state, local or foreign statute, law,
ordinance, regulation, rule, code, order, other requirement or rule of law.
"Person" means any individual, partnership, limited liability company,
firm, corporation, association, trust, unincorporated organization or other
entity, as well as any syndicate or group that would be deemed to be a person
under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.
"Purchase Price" has the meaning specified in Section 2.02.
"Purchaser" has the meaning specified in the preamble to this
Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Seller" has the meaning specified in the preamble to this Agreement.
"Shares" has the meaning specified in the recitals to this Agreement.
"Tax" or "Taxes" means any and all taxes, fees, levies, duties,
tariffs, imposts, and other charges of any kind (together with any and all
interest, penalties, additions to tax and additional amounts imposed with
respect thereto) imposed by any government or taxing authority, including,
without limitation: taxes or other charges on or with respect to income,
franchises, windfall or other profits, gross receipts, property, sales, use,
capital stock, payroll, employment, social security, workers' compensation,
unemployment compensation, or net worth; taxes or other charges in the nature of
excise, withholding, ad valorem, stamp, transfer,
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value added, or gains taxes; license, registration and documentation fees; and
customs duties, tariffs, and similar charges.
SECTION 1.02 Use of Defined Terms. The meanings of the terms defined in
this Agreement shall be applicable to the singular as well as the plural forms
of such terms, unless otherwise stated.
ARTICLE II
PURCHASE AND SALE
SECTION 2.01 Purchase and Sale of the Shares. Upon the terms and
subject to the conditions of this Agreement, at the Closing, the Seller shall
sell, assign, transfer and deliver to the Purchaser the Shares and the Purchaser
shall purchase from the Seller the Shares.
SECTION 2.02 Purchase Price. The purchase price ("Purchase Price") for
the Shares shall be $5.75 per Share.
SECTION 2.03 Closing. Upon the terms and subject to the conditions of
this Agreement, the sale and purchase of the Shares contemplated by this
Agreement shall take place at a closing (the "Closing") to be held at the
offices of Shearman & Sterling ("Purchaser's Counsel"), Broadgate West, 9 Appold
Street, London EC2A 2AP at 3:00 p.m. London time (9 a.m. Houston time) on
November 2, 2000, or at such other place or at such other time or on such other
date as the parties may mutually agree (the day on which the Closing takes place
being referred to as the "Closing Date").
SECTION 2.04 Closing Deliveries by the Seller. At the Closing, the
Seller shall deliver or cause to be delivered to the Purchaser:
(a) stock certificates evidencing the Shares being purchased by the
Purchaser duly endorsed in blank, or accompanied by stock powers duly executed
in blank and with all required stock transfer tax stamps affixed; and
(b) a receipt for the Purchase Price in respect of the Shares being
purchased by the Purchaser.
SECTION 2.05 Closing Deliveries by the Purchaser. At the Closing,
following Seller's delivery of the shares to Purchaser's Counsel, the Purchaser
shall deliver or cause to be delivered to the Seller the aggregate Purchase
Price for the Shares, by wire transfer of immediately available funds to the
account or accounts designated by written notice to the Purchaser prior to the
Closing.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
As an inducement to the Purchaser to enter into this Agreement, the
Seller hereby represents and warrants to the Purchaser as follows:
SECTION 3.01 Organization and Authority of the Seller. The Seller is a
limited partnership duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization and has all necessary power and
authority to enter into this Agreement, to carry out its obligations hereunder
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by the Seller, the performance by the Seller of its
obligations hereunder and the consummation by the Seller of the transactions
contemplated hereby have been duly authorized by all requisite action on the
part of the Seller. This Agreement has been duly executed and delivered by the
Seller, and (assuming due authorization, execution and delivery by the
Purchaser) this Agreement constitutes a legal, valid and binding obligation of
the Seller enforceable against the Seller in accordance with its terms.
SECTION 3.02 Ownership of the Shares. The Shares are owned of record
solely by the Seller free and clear of all Encumbrances. Upon consummation of
the transactions contemplated by this Agreement and registration of such Shares
in the name of the Purchaser in the stock records of the Company, the Purchaser,
assuming they shall have purchased such Shares for value in good faith and
without notice of any adverse claim, will own such Shares free and clear of all
Encumbrances. Upon consummation of the transactions contemplated by this
Agreement, such Shares will be fully paid and nonassessable. There are no voting
trusts, stockholder agreements, proxies or other agreements or understandings in
effect with respect to the voting or transfer of any of the Shares.
SECTION 3.03 No Conflict. The execution, delivery and performance of
this Agreement by the Seller do not and will not (a) violate, conflict with or
result in the breach of any provision of the charter or by-laws (or similar
organizational documents) of the Seller, (b) conflict with or violate any Law or
Governmental Order applicable to the Seller or (c) conflict with, result in any
breach of, constitute a default (or event which with the giving of notice or
lapse of time, or both, would become a default) under, require any consent
under, or give to others any rights of termination, amendment, acceleration,
suspension, revocation or cancellation of, or result in the creation of any
Encumbrance on any of the Shares owned by the Seller or on any of the assets or
properties of the Seller pursuant to, any note, bond, mortgage or indenture,
contract, agreement, lease, sublease, license, permit, franchise or other
instrument or arrangement to which the Seller is a party or by which any of the
Shares or any of such assets or properties is bound or affected.
SECTION 3.04 Governmental Consents and Approvals. The execution,
delivery and performance of this Agreement by the Seller do not and will not
require any consent, approval, authorization or other order of, action by,
filing with or notification to any Governmental Authority.
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SECTION 3.05 Registered Shares/Freely Tradable Shares. With respect to
833,670 of the Shares represented by share certificate number 13838, such Shares
have been registered under the Securities Act, are freely tradable and are not
subject to any registration rights agreement.
(b) With respect to 261,000 of the Shares represented by share
certificate number 13827, such Shares are, and after giving effect to the
transaction contemplated hereby will be, freely tradable and are not subject to
any registration rights agreement.
SECTION 3.06 Compliance with Laws. The offer, sale and issuance to the
Seller, prior to the date hereof, of the Shares have been in accordance with an
applicable exemption under the Securities Act, under applicable state securities
and "blue sky" Laws, and, where applicable, under non-United States securities
Laws.
SECTION 3.07 Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Seller.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
As an inducement to the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as follows:
SECTION 4.01 Organization and Authority of the Purchaser. The Purchaser
is a corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation and has all necessary power and
authority to enter into this Agreement, to carry out its obligations hereunder
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by the Purchaser, the performance by the Purchaser of
its obligations hereunder and the consummation by the Purchaser of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of the Purchaser. This Agreement has been duly executed and
delivered by the Purchaser, and (assuming due authorization, execution and
delivery by the Seller) this Agreement constitutes a legal, valid and binding
obligation of the Purchaser enforceable against the Purchaser in accordance with
its terms.
SECTION 4.02 No Conflict. Except as may result from any facts or
circumstances relating solely to the Seller, the execution, delivery and
performance of this Agreement by the Purchaser do not and will not (a) violate,
conflict with or result in the breach of any provision of the charter or by-laws
(or similar organizational documents) of the Purchaser, (b) conflict with or
violate any Law or Governmental Order applicable to the Purchaser or (c)
conflict with, result in any breach of, constitute a default (or event which
with the giving of notice or lapse of time, or both, would become a default)
under, require any consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation, or cancellation of, any note,
bond, mortgage or indenture, contract, agreement, lease, sublease,
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license, permit, franchise or other instrument or arrangement to which the
Purchaser is a party or by which any of its assets or properties are bound or
affected.
SECTION 4.03 Governmental Consents and Approvals. The execution,
delivery and performance of this Agreement by the Purchaser do not and will not
require any consent, approval, authorization or other order of, action by,
filing with, or notification to, any Governmental Authority, including, without
limitation, any filing under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
SECTION 4.04 Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Purchaser.
ARTICLE V
CONDITIONS TO CLOSING
SECTION 5.01 Conditions to the Obligations of the Seller. The
obligation of the Seller to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment, at or prior to the Closing, of
the following conditions: (i) the representations and warranties of the
Purchaser contained in this Agreement shall have been true and correct when made
and shall be true and correct in all material respects as of the Closing, with
the same force and effect as if made at the Closing, and (ii) the covenants and
agreements contained in this Agreement to be complied with by the Purchaser on
or before the Closing shall have been complied with in all material respects.
SECTION 5.02 Conditions to the Obligations of the Purchaser. The
obligation of the Purchaser to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment, at or prior to the Closing, of
the following conditions: (i) the representations and warranties of the Seller
contained in this Agreement shall have been true and correct when made and shall
be true and correct in all material respects as of the Closing, with the same
force and effect as if made at the Closing, and (ii) the covenants and
agreements contained in this Agreement to be complied with by the Seller on or
before the Closing shall have been complied with in all material respects.
ARTICLE VI
TERMINATION
SECTION 6.01 Termination. This Agreement may be terminated at any time
prior to the Closing by the Seller or the Purchaser if the Closing shall not
have occurred on or prior to November 15, 2000; provided, however, that the
right to terminate this Agreement under this Section 6.01 shall not be available
to any party whose failure to perform any covenant or agreement under this
Agreement shall have been the cause of, or shall have resulted in, the failure
of the Closing to occur on or prior to such date.
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ARTICLE VII
GENERAL PROVISIONS
SECTION 7.01 Expenses. Except as otherwise specified in this Agreement,
all costs and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
SECTION 7.02 Further Action. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things necessary, proper or advisable under applicable Law,
and execute and deliver such documents and other papers, as may be required to
carry out the provisions of this Agreement and consummate and make effective the
transactions contemplated by this Agreement.
SECTION 7.03 Survival of Representations and Warranties. (a) The
representations and warranties of the Seller contained in this Agreement shall
survive the Closing until the second anniversary of the Closing Date.. If
written notice of a claim has been given prior to the expiration of the
applicable representations and warranties by the Purchaser to the Seller, then
the relevant representations and warranties shall survive as to such claim,
until such claim has been finally resolved.
(b) The representations and warranties of the Purchaser contained in
this Agreement shall survive the Closing until the first anniversary of the
Closing Date. If written notice of a claim has been given prior to the
expiration of the applicable representations and warranties by the Seller to the
Purchaser, then the relevant representations and warranties shall survive as to
such claim, until such claim has been finally resolved.
SECTION 7.04 Conveyance Taxes. The Seller shall be liable for and shall
hold the Purchaser harmless against any real property transfer or gains, sales,
use, transfer, value added, stock transfer, and stamp taxes, any transfer,
recording, registration, and other fees, and any similar Taxes which become
payable in connection with the sale of the Shares to the Purchaser under this
Agreement. The Purchaser shall execute and deliver all instruments and
certificates necessary to enable the Seller to comply with the foregoing.
SECTION 7.05 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by courier service, by telecopy or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be specified
in a notice given in accordance with this Section 8.04):
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(a) if to the Seller:
Kleinwort Benson European Mezzanine Fund L.P.
The Grange
St. Peter Port
Guernsey
Channel Islands, GV1 3BQ
Telecopy: 011-44-481-728 317
Attention: Mr. Ian Hancock
(b) if to the Purchaser:
Sulzer Medica USA Holding Co.
3 East Greenway Plaza
Suite 1600
Houston, Texas 77406
Telecopy: (713) 561-6380
Attention: General Counsel
SECTION 7.06 Public Announcements. Except as required by Law or by the
rules of any securities exchange on which securities of any of the parties
hereto are listed or quoted, no party to this Agreement shall make, or cause to
be made, any press release or public announcement in respect of this Agreement
or the transactions contemplated hereby or otherwise communicate with any news
media without the prior written consent of the other parties, and the parties
shall cooperate as to the timing and contents of any such press release or
public announcement.
SECTION 7.07 Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 7.08 Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties with respect to the subject matter hereof.
SECTION 7.09 Assignment. Neither party may assign this Agreement by
operation of law or otherwise without the express written consent of the other
party hereto (which consent may be granted or withheld in the sole discretion of
each party hereto); provided, however, that the Purchaser may assign this
Agreement or any of its rights hereunder to an Affiliate of the Purchaser
without the consent of the Seller.
SECTION 7.10 No Third Party Beneficiaries. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
permitted assigns and nothing herein, express or implied, is intended to or
shall confer upon any other Person any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
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SECTION 7.11 Amendment. This Agreement may not be amended or modified
except by an instrument in writing signed by, or on behalf of, each of the
parties hereto.
SECTION 7.12 Governing Law. This Agreement shall be governed by the
laws of the State of New York.
SECTION 7.13 Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on their behalf as of the date first written above.
KLEINWORT BENSON EUROPEAN
MEZZANINE FUND L.P.
by its General Partner Kleinwort Benson
(Guernsey) Limited
By: /s/ A. N. Pickering
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Name: A.N. Pickering
Title: Director
SULZER MEDICA USA HOLDING CO.
By: /s/ David S. Wise
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Name: David S. Wise
Title: Secretary
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