SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
June 26, 1997
BENTLEY PHARMACEUTICALS, INC.
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(Exact name of registrant as specified in its charter)
Florida 1-10581 59-1513162
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
4830 West Kennedy Boulevard, Suite 548, Tampa, FL 33609
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(Address of Principal Executive Offices) (Zip Code)
(813) 286-4401
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(Registrant's Telephone Number, Including Area Code)
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Item 2. Acquisition and Disposition of Assets.
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On June 26, 1997, Bentley Pharmaceuticals, Inc. (the
"Registrant") sold 100% of the shares of its wholly-owned French
subsidiary, Chimos/LBF S.A. to the Marsing Group, a European
conglomerate, for 22,247,569 French Francs (approximately $3.8
million). The Registrant was paid 1,000,000 French Francs
(approximately $170,000) upon closing of the transaction and will
receive 17,000,000 French Francs (approximately $2.9 million) in early
August 1997. The Registrant will also receive four monthly
installments in the second half of 1997 of 520,142 French Francs
(approximately $90,000) each. An escrow fund in the amount of
2,167,000 French Francs (approximately $370,000) has been established
for certain contingent obligations or liabilities which if not
resolved by July 1, 1998, will be released to the purchaser. The sale
is contingent upon a capital restucturing of Chimos/LBF that is
anticipated to be completed by August 4, 1997.
Chimos/LBF's operations in France consist of the brokerage of
fine chemicals, sourcing of raw materials and pharmaceutical
intermediates and the distribution of ethical drugs.
The consideration was determined by arms-length negotiation
between the parties. There are no relationships between the Marsing
Group and the Registrant or any of its affiliates, its directors, its
officers or any associate of any such directors or officers.
Item 7. Financial Information and Exhibits.
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(c) Exhibits:
Exhibit Number Description
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2.1 Agreement between Bentley Pharmaceuticals, Inc. and
Marsing & Co. Ltd, A.S. dated June 26, 1997.
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S I G N A T U R E
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BENTLEY PHARMACEUTICALS, INC.
(Registrant)
Date: July 10, 1997 By: /s/ Michael D. Price
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Michael D. Price
Vice President & Chief Financial Officer
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EXHIBIT INDEX
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Exhibit Number Description Page Number
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2.1 Agreement between
Bentley Pharmaceuticals,
Inc. and Marsing & Co.
Ltd, A.S. dated June 26,
1997.
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EXHIBIT 2.1
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AGREEMENT
between
BENTLEY PHARMACEUTICALS, INC.
And
MARSING & CO. LTD., A/S
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LIST OF CONTENTS
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1. Closing
2. Share Transfer
3. Purchase Sum
4. Holdback
5. Representations and Warranties
6. Indemnification
7. Operational Warranties
8. Conditions for Closing
9. Board of Directors
10. Announcements
11. Competition Clause
12. Contractual Notice
13. Costs and Expenses
14. Law and Venue
15. Captions
16. Special Confidentiality
17. No Waiver
18. Integration
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Between Bentley Pharmaceuticals, Inc.
4830 West Kennedy Blvd.
Suite 548
US - Tampa, FL 33609
USA
(hereinafter the "Seller")
and Marsing & Co. Ltd. A/S
46 Avedoreholmen
DK-2650 Hvidovre
Denmark
(hereinafter the "Buyer")
avec faculte de substitution
(with right of substitution)
the following
AGREEMENT
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has today been entered into concerning the Buyer's purchase from the Seller of
the entire share capital of Chimos LBF S.A., 198 avenue de Versailles, F-75016
Paris, France (hereinafter the "Company"), and whereby it is agreed as follows:
This Agreement is entered into as an assignment from the Seller to the Buyer of
the entire share capital in the Company. However, at the same time the Buyer
commits itself, to the previous decision of the Seller that the part of the
share capital, namely equal to 24,000 shares, is redeemed as of 4 August 1997 to
the effect that FRF 21,247,569 is paid by the Company to the Shareholder and is
disposed as specified in 3 and 8.
Should it contrary to expectations prove impossible to carry out the assumed
redemption of shares as of the agreed date or at a later date to be agreed upon,
then the entire agreed share transaction shall be considered null and void.
Neither party shall on such occasion have any claims against the other except
for the repayment of the deposit made by the Buyer according to 3.
The agreed assignment of shares is effective as of the date of the signing of
this Agreement and the Buyer is effective as of the Date of the signing entitled
to dispose or give instructions in all usual business matters as owner of the
Company.
1. Closing
1.1 The closing is on the signature of this Agreement (hereinafter "Signing
Day").
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1.2 This Agreement is made on condition subsequent that the terms for the
fulfillment of the transaction as specified in 8 hereof are fulfilled on
the 4th of August (hereinafter "Redemption Day").
1.3 Either party is obliged positively and without any undue delay to
contribute to the carrying out of all investigations and applications
assumed for the fulfilment of the terms mentioned in 8 hereof at the same
time as the assumed documentations are produced and presented.
1.4 If as on Redemption Day it should appear that the agreed conditions have
not been or cannot be fulfilled, the Agreement shall lapse unless
agreement can be reached about a postponement of Redemption Day.
1.5 If this Agreement lapses according to Article 1.4 the Buyer shall
retransfer the shares and the Seller shall reimburse FRF 1,000,000. To
that effect, the Buyer has already issued the corresponding transfer form
which is held in escrow by Me Daniel DIEDLER who is instructed either to
register them with no further notice in the shareholders book if the
condition subsequent does occur provided however that Seller will have
reimburse FRF 1,000,000 to the Buyer or to destroy them if the condition
subsequent provided in Article 1.2 does not occur.
1.6 In case of lapse of this Agreement according to 1.5 above, neither party
shall on such occasion have any claims against the other.
2. Share Transfer
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The Seller shall as on Signing Day assign all shares concerning the
Company's entire share capital of nominal FRF 2,500,000.00 except three
shares held by Mr's Nicolas, Maisonneuve and Noel (hereinafter the
"Shares") duly and legally binding to the Buyer.
3. Purchase Sum
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3.1 The purchase sum for the Shares has been agreed at FRF 22,247,569 which
amount shall be paid in cash for FRF 1,000,000.00 on the signing and for
21,247,569 on Redemption Day in the manner provided in Article 8
hereinafter. confer however 4. The amount in cash of 18,247,569 FRF shall
be paid directly by Chimos to Bentley which is substituted for Marsing.
4. Holdback
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4.1 Of the purchase sum FRF 2,167,000.00 shall serve as a holdback until 1
July 1998 during which period the holdback shall be available to be
applied by the Buyer for any possible
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obligations on the part of the Seller which may result in accordance with
the terms of this Agreement.
4.2 The holdback funds will earn a rate of interest of 4,250 percent per
annum which interest is to be paid half yearly in arrears. Accordingly
the first payment of interest is due on 31st of December 1997 and the
second one on July 1st 1998.
5. Representations and Warranties
------------------------------
The Seller represents and warrants:
5.1 Disclosed Information
5.1.1 that the statements of fact and information and relating to the Company
and/or its shareholder and/or officers and/or connected persons and
associates (or any of them) and/or the business, finances, assets
liabilities, contracts, prospects, suppliers and customers of the Company
given by or on behalf of the Company to the Buyer or its advisers in the
course of the negotiations leading to this Agreement (together the
"Disclosed Information") are true, complete and accurate in all material
respects and not misleading in any respect;
5.1.2 that to the best of the knowledge, information and belief of the Seller
there is no fact, information or other matter which is not fairly and
expressly disclosed which renders or which might render any of the
Disclosed Information untrue, incomplete, inaccurate or misleading in any
material respect or which might reasonably be expected adversely to
affect the willingness of a purchaser to purchase shares in the Company
on the terms contemplated by this Agreement;
5.1.3 that all verbal information given by the Seller to the Buyer or to
representative of the Buyer in anticipation of this Agreement was when
supplied given in good faith and in the honest belief that the same was
correct in all material respects and not misleading.
5.2 The Company
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5.2.1 that the Company is duly organized, existing and registered under the
laws of France. A copy of the articles of association has been delivered
to the Buyer and is attached to this Agreement as Exhibit 1, complete and
correct as of the date of this Agreement;
5.2.2 that the Seller is the absolute owner of 24,995 shares of nominal value
FRF 2,499,500 in the Company and has power to dispose of two shares of
nominal value FRF 100 in the Company each of which belongs to James
Murphy and Michael Price. The total number of shares in the Company is
25,000;
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5.2.3 that the signing of this Agreement and the sale of the shares do not
violate any third party rights according to any shareholders' agreement
or other arrangements.
5.3 Accounts
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5.3.1 that the accounts for the financial years 1993-1994. 1994-1995, 1995-1996
and a sketch concerning the period from July 1st 1996 to February 28,
1997 which have been handed over to the Buyer, Exhibit 2, comply with the
provisions of French company law and all other applicable legislative
requirements and have been prepared in accordance with generally accepted
accountancy practice and principles consistently applied and give an
accurate, true and fair view of all the assets and liabilities (whether
actual or contingent or otherwise) and of the state of affairs of the
Company at the accounting date and of its results for the accounting
period ended thereon;
5.3.2 that the value of assets included in the accounts and, in respect of the
position at the date hereof, the books and records of the Company is not
overstated nor are the liabilities provided for therein understated and
(in accordance with the said accountancy practice and principles; full
provision or reserve has been made in the accounts or such books and
records for depreciation and all bad or doubtful debts and liabilities
(including contingent liabilities) and all present or contingent burdens
and commitments as at the accounting date or at the date hereof;
5.3.3 that proper and necessary books of account and records (including records
held in computer form) have been fully and accurately kept and promptly
completed by the Company, and the same contain full and correct
information relating to all transactions to which the Company has been a
party in accordance with the law and generally accepted accountancy
practice and principles and all such books and records (including print
outs of such records held in computer form) are in the exclusive
possession of and are readily accessible to the Company.
5.4 Taxation
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5.4.1 that the company has within the requisite time duly made all returns,
given all notices, and supplied all other information required to be
supplied to the French authorities with responsibility for taxation, and
customs and all such information, returns and notices were when given or
supplied and are now accurate in all material respects and made on a
proper basis and are not, so far as the Seller is aware, likely to be
subject of any dispute with any of the relevant authorities concerned;
5.4.2 that the Company has duly deducted, withheld, paid and accounted for all
tax due to have been deducted, withheld, paid or accounted for by it
before the date of this Agreement and is not and has not at any time been
liable to pay interest on any unpaid taxation;
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5.4.3 that the Company has not made and the Company is not subject to any
present or future liability to make or provide any payments or
consideration which could be disallowed as a deduction in computing the
profits of the Company or as a charge on the Company's income for
taxation purposes;
5.4.4 that the book value of each of the capital or fixed assets of the Company
in or adopted for the purposes of the accounts attached to this Agreement
as Exhibit 2, does not exceed their original cost. Therefore on a
disposal or deemed disposal of such assets or any of the same there will
not be balancing charge or chargeable gain because such assets would have
been overstated;
5.4.5 that the Company is a registered and taxable person for the purposes of
value added tax (or French equivalent) and (i) has complied with all the
requirements of the relevant value added tax legislation and all
applicable regulations; (ii) is not in arrears with any payment or
returns thereunder and is not liable to any abnormal or non-routine
payment for value added tax purposes; (iii) has maintained complete,
correct and up-to-date value added tax records, invoices and other
necessary documents; and (iv) has not been required by the relevant
French authority to give any security;
5.4.6 that except as concerns the purchase on April 15, 1997 of Laboratorios
Belmac by Bentley which gives rise to a capital gain of 3,000,000 FRF it
being precised that the consequences of such purchase have already been
booked prior to Signing Day, the Company is not under any liability to
taxation , contingent or otherwise, in respect of any company which at
any time has been a member of the same group or consortium as the Company
or any associated company of the Company for taxation purposes or in
respect of any transaction effected with or asset or benefit received
from or given by the Company to any such other company;
5.4.7 that the Company has not entered into or been a party to any scheme or
arrangement designed partly or wholly for the purposes of avoiding or
deferring taxation, and no scheme or transaction of any nature has been
carried out by or proposed in relation to the Company which has given
rise or could give rise to a charge to taxation;
5.4.8 that all of the documents relating to or necessary to prove the title of
the Company to its assets or otherwise relating to the Company's business
and affairs have been properly stamped with applicable stamp or other
duty and such duty has been duly paid;
5.4.9 that the Company has only ever been tax resident in France;
5.4.10 that the Company will not be liable to taxation as a consequence of the
consummation of this transaction.
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5.5 Receivables
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5.5.1 that the Company will not suffer losses on its receivables as on Signing
Day in excess of FRF 100,000.
With regard to receivables as on Signing Day which have not been
collected at the latest two months after due date, and which exceed the
above mentioned maximum amount of FRF 100,000, the Buyer may claim a
reduction of the purchase sum according to 3 hereof with an amount, equal
to the non-collected claims less FRF 100,000.
A list of the receivables as of May 31, 1997 is attached as Exhibit 3 and
an updated Exhibit 3 will be prepared as of Signing Day and delivered to
the Buyer on Redemption Day.
5.6 Assets
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5.6.1 that the company was at July 1st, 1996 is now the owner of and has good
and marketable title to all of the assets included in the 1995-1996
accounts, except Laboratorios Belmac which has been sold on April 15,
1997 by Chimos to Bentley, and all assets now owned or used by the
Company or being in its possession.
5.7 Mortgages and Charges
---------------------
that the Company has not created nor has it agreed to create and nor is
there subsisting any mortgage debenture lien charge or other similar
encumbrance or security interest over all or any of its property assets
undertaking goodwill, reserves or share capital.
5.8 Guarantees
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5.8.1 that the Company is not and has not agreed to become bound by any
guarantees bond, warranty, or indemnity suretyship or similar commitment
and there is not now outstanding any such guarantee bond, warranty,
indemnity, suretyship or similar commitment given for the accommodation
of or in respect of any obligation or liability of the Company except as
listed in Exhibit 4.
5.9 Borrowing Arrangements
----------------------
5.9.1 that Exhibit 5 contains full particulars in relation to all borrowings of
the Company and all arrangements in the nature of borrowing or loan
facilities, including without limitation, factoring or invoice
discounting arrangements;
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5.9.2 that the Company is not in breach of the terms of any of its borrowing
obligations and in particular of any document governing the terms of or
securing such borrowings and no event has occurred which will or might
give any person the right to call for immediate or early repayment of any
of its borrowings or to terminate any loan facilities placed at this
disposal or which is likely to cause a demand for the immediate repayment
of any of its borrowings which are repayable on demand.
5.10 Material Commitments and Agreements
-----------------------------------
5.10.1 that besides the agreements listed in Exhibit 6, the Company is not party
to or liable in respect of, and none of the assets of or used by the
Company is affected by:
(i) any contract, covenant, commitment or arrangement i) of an onerous
or unusual nature or which is likely to be unprofitable or (ii)
which is not terminable by the Company without compensation by
three months' notice or less or which is unlikely to be fully
performed within three months from the date hereof or (iii) made
otherwise than in the ordinary and usual course of the business of
the Company as now carried on or (iv) in respect with its
obligations;
(ii) any partnership, joint venture, consortium, trade association or
society or any agreement or arrangement relating thereto;
(iii) any contract, covenant, commitment or arrangement which in any way
restricts the freedom of the Company to carry on its business or
any part thereof in any part of the world in such a manner as it
thinks fit; or
(iv) any contract, covenant, commitment or arrangement which is or is
liable to be terminated or altered by another party as a result of
any charge in the control management of shareholders of the
Company;
5.10.2 that no person is authorized to act as agent or attorney for the Company
or to bind the Company otherwise than the persons listed in exhibit 7.
5.11 Properties
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5.11.1 that save for the premises located at 198 avenue de Versailles, F-75016
Paris, France (hereinafter the "Property") the Company does not use, own
or occupy or have any interest in any real property and the Company is
under no liability (actual, contingent or otherwise), which is not
disclosed in the Disclosed Information, in respect of the Property or any
such property or interest which it has used, owned or occupied or had any
interest in prior to the
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date hereof.
5.11.2 Copies of all material documents relating to the Property have been
supplied to the Buyer's advisors prior to the signing of this Agreement.
The documents are attached as Exhibit 8.
5.12 Environmental and Health Matters
--------------------------------
5.12.1 that the Company does not carry on any business other than the business
described in the Disclosure Information and the Company's business has
always been carried on in compliance with all applicable legislation.
5.13 Business of the Company
-----------------------
5.13.1 that the Company does not carry on any business other than the business
described in the Disclosure Information and the Company's business has
always been carried on in compliance with applicable legislation;
5.13.2 that the Company has at all material times held and continues to hold all
licenses, covenants and permissions required for the carrying on of its
business and is not in breach of the terms or conditions of such
licenses, covenants and permissions; there are no pending or threatened
proceedings which might in any way adversely affect such licenses,
covenants or permissions; and the Seller is not aware of any
circumstances whereby any of the same is likely to be suspended,
cancelled, revoked or not renewed in the ordinary course;
5.13.3 that none of the business or other practices of the Company is or has
been the subject of or susceptible to be affected by any investigations,
reference, report or order and the Company has not received any process,
notice or communication (formal or informal) from any governmental,
legislative, regulatory consumer protection or the like or other
authority of any jurisdiction or competence.
5.14 Litigation
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5.14.1 that the Company is not except as listed in Exhibit 9 engaged in any
litigation, arbitration, prosecution or other legal proceedings (whether
a plaintiff, defendant or third party) and there are not such proceedings
pending or threatened or any proceedings in respect of which the Company
is or might to liable to indemnify or compensate any other person
concerned therein and to the best of the knowledge, information and
belief of the Seller there are no claims, facts, events of other
circumstances which are likely to give rise to any such proceedings.
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5.15 Breaches of Obligations
-----------------------
5.15.1 that neither the Company nor any person for whom it is vicariously
responsible has committed any breach of or failed to perform or observe
any provision of its articles of association or any covenant or agreement
or the terms or conditions of any consent or licence or any judgement or
order of a court or other competent tribunal or authority by which the
Company is bound or to which it is a party or which affects any of the
assets owned or used by it.
5.16 Insurance
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5.16.1 that the Company is and at all material times has been fully covered by
the insurances attached hereto as Exhibit 10 against all normal risks,
including without limitation, products and all other liabilities having
regard to the type of business carried on and assets owned or used by it;
5.16.2 that the policies of insurance to which the Company is a party are valid
and enforceable; all premiums due have been paid, there are no
outstanding claims or circumstance likely to give rise to a claim
thereunder; and nothing has been done or omitted to be done which has
made or could make any such policy void or voidable or whereby the
renewal of any such policy might be affected or the premiums due in
respect thereof are likely to be increased.
5.17 Employees, etc.
---------------
5.17.1 that the attached Exhibit 11 details the names and full particulars of
all officers, employees, consultants and agents of the Company and their
respective ages, length of service with or engagement by the Company and
their terms of employment or engagement, including without limitation,
their notice periods and emoluments, including bonuses, profit sharing
arrangements and benefits in kind, commissions, fees, remuneration, usual
dates and terms of review of salary, fees and other benefits;
5.17.2 that no present officer, employee, consultant or agent of the Company has
given or received notice of terminating his employment or engagement or
is entitled (without giving proper notice) to terminate his employment or
engagement with the Company;
5.17.3 that, unless otherwise stated in Exhibit 12 the Company is not party to
any agreement or arrangement imposing an obligation on it to increase the
rates of remuneration of or to make any bonus or incentive payments or
any benefits in kind or any payments under a profit sharing scheme to any
on behalf of any of its former, present or future officers, employees,
consultants or agents, whether now or at any future date;
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5.17.4 that there is not in existence any share incentive scheme, share option
scheme or profit sharing scheme for all or any of the Company's officers
or employees and no proposals for any such scheme or arrangements are
under consideration by the Company.
5.18 Pension
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5.18.1 that the Company does not operate nor is it obliged to contribute to any
pension or retirement benefits or death in service or similar schemes or
arrangements for the benefit of any of its former, present or future
employees, other than those required by mandatory laws.
5.19 Intellectual Property Rights
----------------------------
5.19.1 that the business of the Company has at all material times been carried
on without infringing any intellectual property right of any third party;
5.19.2 that the Company has not disclosed or permitted to be disclosed or
undertaken or arranged to disclose to any person any of its know-how,
secrets, confidential information , technical processes or list of
customers or suppliers;
5.19.3 that the Company uses no name other than its corporate name for any
purpose;
5.19.5 that references herein to "intellectual property" and "intellectual
property rights" shall include patents, patent applications, trade marks,
registered designs, design rights, copyrights, moral rights, business
names, trade marks, service marks, computer software programmes and
systems, know how and other industrial or commercial intellectual
property rights whether registered or applied for or not.
6. Indemnification
---------------
6.1 The Seller shall indemnify and hold the Buyer harmless against and in
respect of any and all losses, damages and deficiencies on the part of
the Seller resulting from any misrepresentation or any warranty or any
non-fulfilment of any agreement contained in this Agreement, any exhibit
hereto or any statement or certificate to be furnished to the Buyer
pursuant hereto. The Seller shall reimburse the Buyer any claim in
respect of any liability or obligation to which the foregoing indemnity
relates. The Seller further agrees to indemnify the Buyer from any of the
Company's unknown liabilities, aggregating in excess of FRF 100,000 which
may arise from or are based on facts which relate to the operation of the
Company prior to Signing Day.
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6.2 All statements contained in this Agreement and any certificate or other
instrument delivered to the Buyer pursuant to this Agreement shall be
deemed representations and warranties by the Seller.
6.3 Any profit resulting from the write-off of provisions booked before
signing of this Agreement can be set off against any loss that the Seller
is obliged to indemnify under this Article.
6.4 Any claim under this Article should have been notified to Seller by
Purchaser by July 1st 1998 except as concerns tax and social security
issues, for which a claim can be brought until the end of the statutory
limitation. Any such claim has to be motivated.
6.5 The Seller is entitled to participate with no delay in the defense
against any claim that pertains to indemnification under this Article.
7. Operational Warranties
----------------------
7.1 The Seller warrants that the Business of the Company during the period
from July 1st, 1996 until the signature of this Agreement by the Buyer
has been and shall be conducted consistent with the previously adopted
principles and in accordance with generally accepted management
principles, and that during said period no steps have been or will be
taken of any significant importance for the future operations and economy
of the Company without written consent of the Buyer, and specifically
that the following steps have not been and shall not be taken without
such consent.
7.1.1 except as concerns the sale to Bentley of Laboratorios Belmac, any change
in the assets or liabilities of the Company other than changes in the
ordinary course of business; none of such changes have been materially
made;
7.1.2 any deduction or loss materially or adversely affecting the business or
prospects of any of the activities of the Company;
7.1.3 any declaration of payment of any dividend or other distribution of the
equity except as conditioned in 8 hereof or any amendment to the articles
of association;
7.1.4 any debt, obligation or liability incurred by the Company except current
liabilities incurred and obligations under agreement entered into in the
ordinary course of business;
7.1.5 any sale, lease, abandonment or other disposition of any machinery,
equipment or other operating properties other than in the ordinary course
of business, nor any sale, assignment and transfer of licence by the
Company of any know-how, trademark, trade name or other intangible
assets;
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7.1.6 any event or condition of any character adversely affecting the business
or prospects for the Company.
8. Event being the condition provided in Article 1.2
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Thirty days after signature of this Agreement Chimos shall redeem 24,000
shares from the Purchaser for FRF 21,247,569 and have reduced its capital
as shown in exhibit 13.
The redemption price shall be adjusted to the Net Assets Value of Chimos
as of April 30, 1997 less FRF 1,000,000. There shall be an increase or
decrease equal to the difference between FRF 22,247,569 and the adjusted
Net Assets Value as of April 30, 1997 (which shall include FRF 3,000,000
capital gain generated by the sale of Laboratorios Belmac's shares by
Chimos to Bentley).
The redemption price shall be paid as follows:
a) 14,000,000 shall be paid in cash on the Signing Day
b) 3,000,000 FF shall be paid by assigning to the purchaser a note
representing the price due and owing to Chimos pursuant to the
sale to Bentley of Laboratorios Belmac.
c) 2,167,000 FF shall be held back as provided in Article 4
hereinabove.
d) 2,080,569 FF plus or less any adjustment shall be paid in four
equal monthly installments as from June 30, 1997.
9. Board of Directors
------------------
9.1 In connection with the acquisition of the Shares in the Company the Buyer
shall arrange for an extraordinary general meeting of the Company in
order to elect new members of the board of directors in replacement of
the present members.
The Seller guarantees that the resigning member of the board of directors
of the Company will not make any claims for fees for the current
financial year or any other claims against the Company.
10. Announcements
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10.1 Prior to Signing Day neither party shall issue any statement or
indication or make any announcement regarding the transaction comprised
by this Agreement.
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10.2 After Signing Day the publication of the transaction shall be made only
in a manner approved by both parties.
10.3 The Seller shall use his best endeavors to ensure that the existing
customers remain with the Company.
11. Competition Clause
------------------
11.1 Except as concerns Biolid, the Seller undertakes for a period of five
years from the Signing Day not to begin, work of or in any other manner
by directly or indirectly interested in any sort of marketing and sale of
any product which for the last five years prior to Signing Day has been
marketed or sold by the Company.
In event of the Seller's violation of this competition clause, a penalty
in the amount of FRF 500,000 shall be imposed of the Seller each time a
violation takes place. Payment of the penalty does not terminate this
competition clause. In addition, the Buyer shall be entitled to damages
for any loss sustained by the violation.
11.2 Moreover, the Buyer shall be entitled to request a court injunction
without having to pay a deposit against the Seller's violation of the
competition clause.
12. Contractual Notice
------------------
12.1 All notice relating to this Agreement shall be deemed to have been duly
given if delivered or sent by fax, registered mail or by ordinary letter,
the receipt of which has been acknowledged by the recipient, if the
notice has been address:
a) For the Seller to: Bentley Pharmaceuticals, Inc.
4830 West Kennedy Blvd.
Suite 548
US - Tampa, FL 33609
USA
b) For the Buyer to: Marsing & Co. Ltd. A/S
46 Avedoreholmen
DK-2650 Hvidovre
Denmark
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<PAGE>
13. Costs and Expenses
------------------
13.1 Each party shall pay half of any public frees/taxes or notarial fees
arising out of this Agreement.
13.2 Each party shall pay its own costs and expenses in connection with the
execution of this transaction.
14. Law and Venue
-------------
14.1 All disputes or disagreements which may arise in connection with this
Agreement and which cannot be settled amicably between the two parties
shall be finally decided in accordance with French law.
14.2 The venue shall be "Tribunal de Commerce" of Paris.
14.3 This Agreement shall be binding on the successors and assignees of the
parties hereto.
15. Captions
--------
15.1 The captions of this Agreement are for conveniences of reference only and
shall not define or limit any of the terms or provisions hereof.
16. Special Confidentiality
-----------------------
16.1 The parties agree that all terms and conditions contained herein are
confidential and shall not be disclosed to any third party.
17. No Waiver
---------
17.1 Failure by any party at any time or times to require performance of any
provision of this Agreement shall in no manner affect its right to
enforce the same, and the waiver by any party of any breach of any
provision of this Agreement shall not be construed to be a waiver by such
party of any succeeding breach of such provision or waiver by such party
of any breach of any provision hereof.
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<PAGE>
18. Integration
-----------
18.1 This Agreement represents the entire understanding and agreement between
the parties hereto with respect to the subject matter hereof and
supersedes all prior negotiations and understandings related to the
subject matter hereof.
In three counterparts:
Date: 26, June 1997 Date: 26, June 1997
As Seller: As Buyer:
/s/ James R. Murphy, Chairman /s/ Finn Sondergaard
- ------------------------------------ ------------------------------------
Bentley Pharmaceuticals, Inc. Marsing & Co. Ltd., A/S
Bon pour acceptation de delegation
/s/ Denis Nicolas
-----------------
Chimos
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