<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) July 5, 1996
-----------------------
EuroMed, Inc.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
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Nevada 0-27720 88-031770
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(State or other jurisdiction (Commission (IRS Employer
of incorporation File Number) Identification No.)
</TABLE>
Wilhelminakanaal Noord 6, NL 4902VR Oosterhout, The Netherlands
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 011-31-16-203-7440
----------------------------
<PAGE> 2
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
EuroMed, Inc. ("Registrant") and EuroMed Europe B.V., a wholly-owned
subsidiary of Registrant ("Purchaser"), entered into a Stock Purchase
Agreement, dated as of June 19, 1996 (the "Purchase Agreement"), with Dr. A.
Doets ("Doets"), Dr. N. Th. P. Roozekrans ("Roozekrans"), Mutarestes B. V.
("Mutarestes"), Pluripharm International, B.V., a wholly-owned subsidiary of
Mutarestes ("Pluripharm"), and Financieringsmaatschappij De Nieuwe Wereld,
B.V., a wholly-owned subsidiary of Pluripharm ("FDNW"), pursuant to which
Purchaser agreed to acquire from the personal holding companies of Doets and
Roozekrans (collectively, the "Personal Holding Companies") all of the capital
stock of Mutarestes, Pluripharm and FDNW (collectively, the "Companies"). The
purchase price paid by Purchaser for the Companies consisted of: (i) 10 million
Dutch guilders in cash; and (ii) 850,000 shares of Registrant's Common Stock.
The closing of the transactions contemplated by the Purchase Agreement occurred
on July 5, 1996 (the "Closing Date"). Pluripharm, the operating company, is
engaged in the wholesale distribution of branded and generic medicines within
The Netherlands.
As a condition of the Purchase Agreement, each of Messrs. Doets and
Roozekrans and Dr. A. Francois Hinnen ("Hinnen") entered into a Consulting,
Management and Noncompetition Agreement, dated as of July 5, 1996, with
Purchaser (each, a "Consulting Agreement"). Each Consulting Agreement
provides, among other things, that Doets, Roozekrans or Hinnen (as the case may
be) shall provide management services to Purchaser for a period of five-years,
for which each of such persons will receive an annual fee of 200,000 Dutch
guilders, as well as bonuses and fringe benefits as mutually agreed to by each
Doets, Roozekrans and Hinnen and Registrant.
Simultaneously with the execution of the Purchase Agreement,
Purchaser, Registrant, Doets and Roozekrans entered into a Stock Purchase
Agreement, dated as of June 19, 1996 (the "Second Purchase Agreement"),
pursuant to which Purchaser purchased from Messrs. Doets and Roozekrans all of
the outstanding capital stock of the Personal Holding Companies (i.e., Nydima
B.V. and N.T.P. Consult B.V.) for a purchase price equal to the book value of
the capital stock of the Holding Companies as of July 1, 1996 payable in cash.
The transactions contemplated by the Second Purchase Agreement were consummated
on the Closing Date.
The purchase prices paid under the Purchase Agreement and the Second
Purchase Agreement were determined pursuant to arms-length transactions, and
were based upon, among other things, multiples of earnings and potential
earnings. The cash portion of the purchase price was funded by the use of
available funds of Registrant (8,560,000 Dutch guilders), which included
proceeds from Registrant's initial public offering completed on March 19, 1996,
with the remaining portion of the purchase price (1,440,000 Dutch guilders)
being funded through a loan to Registrant from Bank MeesPierson, N.V.
<PAGE> 3
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of business acquired in the Transaction.(1)
(i) Consolidated Balance Sheet.
(ii) Interim Consolidated Balance Sheet.
(iii) Consolidated Statement of Income.
(iv) Interim Consolidated Statement of Income.
(v) Consolidated Statement of Cash Flows.
(vi) Interim Consolidated Statement of Cash Flows.
(b) Pro forma Financial Information for the Transaction.(1)
(i) Pro forma Condensed Balance Sheet.
(ii) Pro forma Condensed Consolidated Statement
of Income.
(c) Exhibits
The following is a list of exhibits filed as part of this Current
Report on Form 8-K:
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Exhibit No. Description
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2.1 Stock Purchase Agreement dated as of June 19, 1996, by and
among Registrant, Purchaser, Doets, Roozekrans, Mutarestes,
Pluripharm and FDNW.(5)
2.2 Stock Purchase Agreement, dated as of June 19, 1996, by and
among Registrant, Purchaser, Doets and Roozekrans.(2)
4.1 Restated Articles of Incorporation of the Company.(3)
4.2 Bylaws of the Company.(3)
4.3 Specimen of Common Stock Certificate.(4)
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3
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10.1 Consulting, Management and Noncompetition Agreement, dated
as of July 5, 1996, by and between Purchaser and Doets.(2)
10.2 Consulting, Management and Noncompetition Agreement, dated
as of July 5, 1996, by and between Purchaser and Roozekrans.(2)
10.3 Consulting, Management and Noncompetition Agreement, dated
as of July 5, 1996, by and between Purchaser and Hinnen.(2)
23.1 Consent of Deloitte & Touche LLP.(2)
</TABLE>
__________________________
(1) It is impractical for Registrant to file such financial
statements at this time. Such financial statements
will be filed under cover of Form 8-K/A as soon as
practicable, but no later than 60 days after the date by which
this report on Form 8-K was required to be filed.
(2) To be filed by amendment.
(3) Previously filed as an exhibit to Registration No. 33-80801 on
Form S-1 and incorporated herein by reference.
(4) Previously filed as an exhibit to Amendment No. 1 to
Registration No. 33-80801 on Form S-1 and incorporated herein
by reference.
(5) Filed herewith.
4
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
EUROMED, INC.
Date: July 19, 1995 By: /s/ Jan Bouwman
-----------------------------------------
Jan Bouwman
Chief Financial Officer, Secretary &
Treasurer
5
<PAGE> 6
INDEX TO EXHIBITS
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<CAPTION>
Exhibit No. Description
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<S> <C>
2.1 Stock Purchase Agreement dated as of June 19, 1996, by and among
Registrant, Purchaser, Doets, Roozekrans, Mutarestes, Pluripharm and
FDNW.(5)
2.2 Stock Purchase Agreement, dated as of June 19, 1996, by and among
Registrant, Purchaser, Doets and Roozekrans.(5)
4.1 Restated Articles of Incorporation of the Company.(3)
4.2 Bylaws of the Company.(3)
4.3 Specimen of Common Stock Certificate.(4)
10.1 Consulting, Management and Noncompetition Agreement, dated as of July
5, 1996, by and between Purchaser and Doets.(5)
10.2 Consulting, Management and Noncompetition Agreement, dated as of July
5, 1996, by and between Purchaser and Roozekrans.(5)
10.3 Consulting, Management and Noncompetition Agreement, dated as of July
5, 1996, by and between Purchaser and Hinnen.(5)
23.1 Consent of Deloitte & Touche LLP.(2)
27.1 Financial Data Schedule.(1)
</TABLE>
__________________________
(1) It is impractical for Registrant to file such financial
statements and related financial data schedule at this time.
Such financial statements and related financial data schedule
will be filed under cover of Form 8-K/A as soon as
practicable, but no later than 60 days after the date by which
this report on Form 8-K was required to be filed.
(2) To be filed by amendment.
(3) Previously filed as an exhibit to Registration No. 33-80801 on
Form S-1 and incorporated herein by reference.
(4) Previously filed as an exhibit to Amendment No. 1 to
Registration No. 33-80801 on Form S-1 and incorporated herein
by reference.
(5) Filed herewith.
6
<PAGE> 1
EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
BY AND AMONG
EUROMED, INC.,
EUROMED EUROPE, B.V.,
DR. A. DOETS,
DR. N. TH. P. ROOZEKRANS,
MUTARESTES B.V.,
PLURIPHARM INTERNATIONAL, B.V.
FINANCIERINGSMAATSCHAPPIJ DE NIEUWE WERELD, B.V.,
AND
B.V. WISTERIA
JUNE 19, 1996
<PAGE> 2
TABLE OF CONTENTS
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STOCK PURCHASE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II. Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.01 Purchase and Sale of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.02 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.03 [Initially Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III. Representations and warranties of the Companies and Shareholders . . . . . . . . . . . . . . . . 4
Section 3.01 Ownership of the Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.02 Organization and Good Standing; Qualification . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.03 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.04 Corporate Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.05 Authorization and Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.06 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.07 No Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.08 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.09 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.10 Liabilities and Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.11 Employee Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.12 Employee Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.13 Absence of Certain Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.14 Title; Leased Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.15 Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.16 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.17 Proprietary Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.18 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.19 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.20 Finder's Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3.21 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3.22 Accuracy of Information Furnished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3.23 Condition of Fixed Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3.24 Inventory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 3.25 Beats of Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 3.26 [Initially omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 3.27 Distributions and Repurchases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Section 3.28 Customers and Suppliers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 3.29 Product Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3.30 Ownership Interests of Interested Persons . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3.31 Investments in Competitors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3.32 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 3.33 Certain Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 3.34 Government Inquiries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.35 [Initially Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.36 Status of Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE IV. Representations and Warranties of Purchaser and Euromed . . . . . . . . . . . . . . . . . . . . 21
Section 4.01 Organization and Good Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 4.02 Authorization and Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 4.03 No Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 4.04 Finder's Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 4.05 Commission Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 4.06 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 4.07 Absence of Certain Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 4.08 Authorization for share Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 4.09 Subsidiary of EuroMed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE V. The Companies' and Shareholders' Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 5.01 Consummation of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 5.02 [Initially Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 5.03 Business Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 5.04 Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 5.05 Environmental Audits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 5.06 Material Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 5.07 Approvals of Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.08 Employee Matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.09 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.10 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 5.11 Changes in Inventory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 5.12 Capital Assets; Payments of Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 5.13 Mortgages, Liens and Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 5.14 No Negotiation with Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 5.15 Backlog . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE VI. Purchaser's Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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ARTICLE VII. Purchaser's Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.01 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.02 Covenants and Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.03 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.04 No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.05 [Initially Omitted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.06 [Initially Omitted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.07 [Initially Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.08 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.09 [Initially Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.10 [Initially Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.11 PTC Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.12 [Initially Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.13 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.14 Continuing Business Pluripharm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.15 Closing Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE VIII. The Companies' and Shareholders' Conditions Precedent . . . . . . . . . . . . . . . . . . . . . 32
Section 8.01 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 8.02 Covenants and Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 8.03 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 8.04 Shareholders' Satisfaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 8.05 No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 8.06 Closing Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE IX. Closing Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 9.01 Deliveries of the Companies and Shareholders . . . . . . . . . . . . . . . . . . . . . . . 33
Section 9.02 Deliveries of Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE X. Transfer Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.01 Restriction Period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.02 Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.03 Restrictions on Corresponding Securities and Assets . . . . . . . . . . . . . . . . . . . . 37
Section 10.04 Legends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE XI. Board Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.01 Board Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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Section 11.02 Obligations B.V. Wisteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE XII. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 12.01 Indemnification by Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 12.02 Indemnification by Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 12.03 Conditions of Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 12.04 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 12.05 Remedies Not Exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 12.06 Offset . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 12.07 Costal Expenses and Legal Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 12.08 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 12.09 Tax Effect of Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 13.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE XIV. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 14.01 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 14.02 [Initially Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 14.03 Parties In Interest; No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . 45
Section 14.04 [Initially Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 14.05 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 14.06 Survival of Representations, Warranties and Covenants . . . . . . . . . . . . . . . . . . . 46
Section 14.07 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 14.08 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 14.09 Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 14.10 Reference to Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 14.11 Confidentiality; Publicity and Disclosures . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 14.12 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 14.13 Further Instruments of Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 14.14 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
</TABLE>
iv
<PAGE> 6
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement"), dated as of June 19, 1996, is
by and among Dr. A. Doets ("Doets"), Dr. N. Th. P. Roozekrans ("Roozekrans")
(collectively, the "Shareholders"), Mutarestes B.V., a Netherlands Corporation
("Mutarestes"), Pluripharm International, B.V., a Netherlands corporation
("Pluripharm"), Financieringsmaatschappij De Nieuwe Wereld, B.V., a Netherlands
corporation ("DNW") (Mutarestes Pluripharm and DNW are sometimes collectively
referred to herein as the "Companies"), and EuroMed Europe, B.V., a Netherlands
corporation ("Purchaser") and wholly- owned subsidiary of EuroMed, Inc., a
Nevada corporation ("EuroMed") and EuroMed.
W I T N E S S E T H :
WHEREAS, Shareholders hold, through their personal holding companies, all of
the issued and outstanding shares of capital stock (the "Stock") of Mutarestes,
which owns all of the issued and outstanding stock of Pluripharm, which in turn
owns all of the issued and outstanding stock of DNW, and the Shareholders
desire to sell, and Purchaser desires to purchase, the Stock;
NOW, THEREFORE, in consideration of the mutual representations, warranties and
covenants herein contained, and on the terms and subject to the conditions
herein set forth, the parties hereto hereby agree as follows:
ARTICLE I. Definitions
Section 1.01 Definitions.
As used in this Agreement, the following terms shall have the meanings set
forth below:
(a) "March Balance Sheet" shall mean the balance sheet of the Companies at
March 31, 1996.
(b) "Cash Compensation" shall have the meaning set forth in Section 3.13.
(c) "Cash Consideration" shall have the meaning set forth in Section 2.02.
(d) "Closing" shall mean the closing of the transactions contemplated by
this Agreement, which shall occur at 10:00 a.m., local time, on the
Closing Date in the offices of Notarissenkantoor Van Apeldoorn &
Taselaar (Stationsweg 65, Ede, the Netherlands),
<PAGE> 7
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or at such other time and place as shall be mutually agreed in writing
by the parties hereto. The Closing shall be effective as of the
Effective Date for all purposes.
(e) "Closing Date" shall mean July 1, 1996 or such other date as may be
mutually agreed in writing by the parties hereto; provided that the
date may not be more than thirty days after the date hereof.
(f) "Code" shall mean the Internal Revenue Code of 1986.
(g) "Commission" shall mean the Securities and Exchange Commission.
(h) "Commission Reports" shall have the meaning set forth in Section 4.05.
(i) "Commitments" shall have the meaning set forth in Section 3.15(a).
(j) "Compensation Plans" shall have the meaning set forth in Section
3.11(b).
(k) "Confidential Information" shall mean all trade secrets and other
confidential and/or proprietary information of the particular person,
including information derived from reports, investigations, research,
work in progress, codes, software, marketing and sales programs,
financial projections, cost summaries, pricing formula, contract
analyses, financial information, projections, maps, confidential
filings with any state or federal agency, and all other concepts,
know-how, methods of doing business, ideas, materials or information
prepared or performed for, by or on behalf of such person by its
employees, officers, directors, agents, representatives, or
consultants to the extent not publicly known or not disclosed as a
result of breach of confidentiality.
(l) "Consulting, Management and Noncompetition Agreement" shall have the
meaning set forth in Section 9.01(j).
(m) [Initially omitted]
(n) "Damages" shall have the meaning set forth in Section 12.01.
(o) "December Balance Sheet" shall mean the balance sheet of the companies
at December 31, 1995 which is included in the Financial Statements.
(p) "December Net Worth" shall mean the sun of the assets of the Companies
as shown on the December Balance sheet less the sum of the liabilities
of the Companies as shown on the December Balance Sheet.
(q) "Effective Date" shall mean January 1, 1996.
<PAGE> 8
- 3 -
(r) [Initially Omitted]
(s) "Employee Policies and Procedures" shall have the meaning set forth in
Section 3.11(d).
(t) "Employment Agreements" shall have the meaning set forth in Section
3.11(c).
(u) "Environmental Laws" shall have the meaning set forth in Section 3.32.
(v) "EuroMed Stock" shall mean the common stock, par value $0.01 per
share, of EuroMed, Inc.
(w) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(x) "Financial statements" shall have the meaning set forth in Section
3.09.
(y) "GAAP" shall mean generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board and Securities and Exchange Commission or in such other
statements by such other entity or other practices and procedures as
may be approved by a significant segment of the accounting profession,
which are applicable to the circumstances as of the date of
determination.
(z) "Ordinary course of business" means the usual and customary way in
which the Companies have conducted their business in the past.
(aa) "Personal Property" shall have the meaning set forth in Section
3.14(b).
(ab) "Pre-Closing Dividend" shall have the meaning set forth in Section
3.13(u).
(ac) "Proprietary Rights" shall have the meaning set forth in Section
3.17(a).
(ad) "Purchase Price" shall have the meaning set forth in Section 2.02.
(ae) "Real Property" Shall have the Meaning set forth in Section 3.14(a).
(af) "Securities Act" means the Securities Act of 1933, as amended.
(ag) "Share Consideration" shall have the meaning met forth in Section
2.02.
<PAGE> 9
- 4 -
ARTICLE II. Purchase and Sale
Section 2.01 Purchase and Sale of Stock.
Subject to and upon the terms and conditions contained herein, at the Closing,
Shareholders shall, through the sale of their personal holdings companies as
set out in a separate agreement, sell, transfer, assign, convey and deliver to
Purchaser, free and clear of all adverse claims, security interests, liens,
claims and encumbrances and Purchaser shall thereby purchase, accept and
acquire the Stock.
Section 2.02 Purchase Price.
The total purchase price for the Stock (the "Purchase Price") shall be the
aggregate of the following: (a) 10 million Dutch Guilders in cash ("Cash
Consideration") and (b) 850,000 shares of EuroMed Stock (the "Share
Consideration") to be delivered at Closing to the Shareholders which forms part
of the purchase price of the separate agreement referred to in article 2.01.
Section 2.03 [Initially Omitted]
ARTICLE III. Representations and warranties of the Companies and
Shareholders.
The Companies and Shareholders jointly and severally represent and warrant that
the following are true and correct as of the date hereof and will be true and
correct through the Effective Date as if made on that date:
Section 3.01 Ownership of the Stock.
Shareholders own, beneficially good and marketable title to the Stock, which
constitutes all of the issued and outstanding capital stock of Mutarestes, free
and clear of all security interests, liens, adverse claims, encumbrances,
equities, proxies, options or shareholders' agreements. Mutarestes owns,
beneficially and of record, good and marketable title to all of the issued and
outstanding capital stock of Pluripharm, Pluripharm owns, beneficially and of
record good and marketable title to all of the issued and outstanding stock of
DNW.
At the Closing, Shareholders will cause the conveyance to Purchaser of good and
marketable title to all of the Stock free and clear of any security interests,
liens, adverse claims, encumbrances, equities, proxies, options, shareholders'
agreements or restrictions.
<PAGE> 10
- 5 -
Section 3.02 Organization and Good Standing; Qualification.
The Companies are corporations duly organized, validly existing and in good
standing under the laws of The Netherlands, with all requisite corporate power
and authority to carry on the business in which they are engaged, to own the
properties they own, to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. The companies are duly qualified and
licensed to do business and are in good standing in all jurisdictions where the
nature of their business makes such qualification necessary, except where the
failure to be qualified or licensed would not have a material adverse effect on
the business of the companies. The companies do not have any assets, employees
or offices in any countries other than the Netherlands.
Section 3.03 Capitalization.
The authorized and issued capital stock of the Companies and the ownership
interests of the Shareholders is set forth separately for Mutarestes,
Pluripharm and DNW on Schedule 3.03. No shares of the capital stock of the
companies are held in the treasury of the Companies. All of issued and
outstanding shares of capital stock of the Companies are duly authorized,
validly issued, fully paid and nonassessable. There exist no options, warrants,
subscriptions or other rights to purchase, or securities convertible into or
exchangeable for, the capital stock of the Companies. Neither Shareholders nor
the Companies are parties to or bound by, nor do they have any knowledge of,
any agreement, instrument, arrangement, contract, obligation, commitment or
understanding of any character, whether written or oral, express or implied,
relating to the sale, assignment, encumbrance, conveyance, transfer or delivery
of any capital stock of the Companies. No shares of capital stock of the
Companies have been issued or disposed of in violation of the preemptive rights
of any of the Companies' shareholders. All accrued dividends on the capital
stock of the Companies, whether or not declared, have been paid in full at the
Closing date.
Section 3.04 Corporate Records.
The copies of the Articles of Incorporation and all amendments thereto and the
Bylaws of the Companies that have been delivered to Purchaser are true, correct
and complete copies thereof, as in effect on the date hereof. The minute books
of the Companies, copies of which have been delivered to Purchaser, contain
accurate minutes of meetings of, and accurate consents to actions taken without
meetings by, the Board of Directors (and any committees thereof) and the
shareholders of the Companies since the formation of the Companies.
Section 3.05 Authorization and Validity.
The execution, delivery and performance by the Companies of this Agreement and
the other agreements contemplated hereby, and the consummation of the
transactions contemplated hereby
<PAGE> 11
- 6 -
and thereby, have boon duly authorized by the Companies. This Agreement and
each other agreement contemplated hereby to which they are a party have been or
will be as of the Closing Date duly executed and delivered by the Companies and
constitute or will constitute legal, valid and binding obligations of the
Companies, enforceable against the Companies in accordance with their
respective terms, except as may be limited by applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally or the availability of
equitable remedies. This Agreement and each other agreement contemplated
hereby to which either Shareholder is a party have been or will be as of the
Closing Date duly executed and delivered by such Shareholder and constitute and
will constitute legal, valid and binding obligations of such Shareholder,
enforceable in accordance with their respective terms, except as may be limited
by applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally or the availability of equitable remedies. The sale of the
Stock by Shareholders to Purchaser will not impair the ability or authority of
the Companies to carry on their business as now conducted in any respect.
Section 3.06 Subsidiaries.
Except as set forth separately for Mutarestes, Pluripharm and DNW on Schedule
3.06, the Companies do not own, directly or indirectly, any of the capital
stock of any other corporation or any equity, profit sharing, participation or
other interest in any corporation, partnership, joint venture or other entity.
Section 3.07 No Violation.
Neither the execution, delivery or performance of this Agreement or the other
agreements contemplated hereby nor the consummation of the transactions
contemplated hereby or thereby will (a) conflict with, or result in a violation
or breach of the terms, conditions or provisions of, or constitute a default
under, the Articles of Incorporation or Bylaws of the Companies or any
agreement, indenture or other instrument under which the Companies are bound or
to which the Stock or any of the assets of the Companies are subject, or result
in the creation or imposition of any security interest, lien, charge or
encumbrance upon the Stock or any of the assets of the Companies, or (b)
violate or conflict with any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or regulatory agency or
body having jurisdiction over the Companies, the Stock or the assets of the
Companies. The Companies have complied with all laws, regulations and
licensing requirements and has filed with the proper authorities all necessary
statements and reports.
Section 3.08 Consents.
Except as set forth separately for Mutarestes, Pluripharm and DNW in Schedule
3.08, no consent, authorization, approval, permit or license of, or filing
with, any governmental or public body or authority, any lender or lessor or any
other person or entity is required to authorize,
<PAGE> 12
- 7 -
or is required in connection with, the execution, delivery and performance of
this Agreement or the agreements contemplated hereby on the part of the
Companies or shareholders.
Section 3.09 Financial Statements.
The Companies have furnished to Purchaser the audited balance sheet and related
audited statements of income, retained earnings and cash flows for each of the
twelve months ended December 31 for the 1993, 1994 and 1995 calendar years,
including the notes thereto, as well as unaudited balance sheets and related
unaudited statements of income, retained earnings and cash flows for the
three-month period ended March 31, 1996 (the "March Balance Sheet")
(collectively, the "Financial Statements"). The Financial Statements are in
accordance with the books and records of the Companies, fairly present the
financial condition and results of operations of the Companies as of the dates
and for the periods indicated and have been prepared in conformity with GAAP
applied on a consistent basis with prior periods. All accounts receivables
shown in the March Balance Sheet have arisen from bona fide transactions in the
ordinary course of business and are valid and enforceable claims subject to no
right of set-off or counterclaim.
Section 3.10 Liabilities and Obligations.
Except as not forth separately for Mutarestes, Pluripharm and DNW in Schedule
3.10, the Financial Statements reflect at the date thereof all liabilities of
the Companies accrued, contingent or otherwise, arising out of transactions
affected or events occurring on or prior to the date hereof. All reserves
shown in the Financial Statements are appropriate, reasonable and sufficient to
provide for losses thereby contemplated. Except as set forth in the Financial
Statements, the Companies are not liable upon or with respect to, or obligated
in any other way to provide funds in respect of or to guarantee or assume in
any manner, any debt, obligation or dividend of any person, corporation,
association, partnership, joint venture, trust or other entity, and neither the
Companies nor Shareholders know of any basis for the assertion of any other
claims or liabilities of any nature or in any amount,
Section 3.11 Employee Matters.
(a) Cash Compensation.
Schedule 3.11(a) contains a complete and accurate list set forth
separately for Mutarestes, Pluripharm and DNW of the names, titles and
cash compensation, including without limitation wages, salaries,
bonuses (discretionary and formula) and other cash compensation (the
"Cash Compensation") of all executive management of the Companies,
regardless of compensation levels, and all other salaried employees of
the Companies. In addition, Schedule 3.11 (a) contains a complete and
accurate list set forth separately for Mutarestes, Pluripharm and DNW
of (i) all increases in Cash Compensation of such
<PAGE> 13
- 8 -
employees during the current and immediately preceding fiscal years of
the Companies and (ii) any promised increases in cash compensation of
such employees that have not yet been effected.
(b) Compensation Plans.
Schedule 3.11(b) contains a complete and accurate list set forth
separately for Mutarestes, Pluripharm and DNW of all compensation
plans, arrangements or practices (the "Compensation Plans") sponsored
by the Companies or to which the Companies contribute on behalf of
their employees, other than Employee Benefit Plans listed in Schedule
3.12(a). The Compensation Plans include without limitation plans,
arrangements or practices that provide for severance pay, deferred
compensation, incentive, bonus or performance awards, and stock
ownership or stock options. The Companies have provided Purchaser a
copy of each written Compensation Plan and a written description of
each unwritten Compensation Plan. Each of the Compensation Plans can
be terminated or amended at will by the Companies.
(c) Employment Agreements.
Schedule 3.11 (c) contains a complete and accurate list set forth
separately for Mutarestes, Pluripharm and DNW of all employment
agreements (the "Employment Agreements") to which the Companies are a
party with respect to their employees. The Employment Agreements
include without limitation employee leasing agreements, employee
services agreements and noncompetition agreements. The Companies have
provided Purchaser a copy of each written Employment Agreement and a
written description of each unwritten Employment Agreement.
(d) Employee Policies and Procedures.
Schedule 3.11(d) contains a complete and accurate list set forth
separately for Mutarestes, Pluripharm and DNW of all employee manuals,
policies, procedures and work related rules (the "Employee Policies
and Procedures") that apply to employees of the Companies. The
Companies have provided Purchaser a copy of all written Employee
Policies and Procedures and a written description of all unwritten
Employee Policies and Procedures. Each of the Employee Policies and
Procedures can be amended or terminated at will by the companies.
(e) Unwritten Amendments.
Except as set forth separately for Mutarestes, Pluripharm and DNW in
Schedule 3.11(e), no unwritten amendments have been made, whether by
oral communication, pattern of
<PAGE> 14
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conduct or otherwise, with respect to any Compensation Plans,
Employment Agreements or Employee Policies and Procedures.
(f) Labour Compliance.
Except as set forth separately for Mutarestes, Pluripharm and DNW in
Schedule 3.11(f), the Companies (i) have been and are in compliance
with all laws, rules, regulations and ordinances respecting employment
and employment practices, terms and conditions of employment and wages
and hours, and (ii) are not liable for any arrears of wages or
penalties for failure to comply with any of the foregoing. The
Companies have not engaged in any unfair labour practice or
discriminated on the basis of race, colour, religion, sex, national
origin, age or handicap in its employment conditions or practices.
There are no (i) unfair labour practice charges or complaints or
racial, colour, religious, sex, national origin, age or handicap
discrimination charges or complaints pending or threatened against the
Companies before any national or local court, board, department,
commission or agency nor does any basis therefor exist or (ii)
existing or threatened labour strikes, disputes, grievances,
controversies or other labour troubles affecting the Companies nor
does any basis therefor exist.
(g) Unions.
The Companies have never been a party to any agreement with any union,
labour organization or collective bargaining unit. No employees of
the Companies are represented by any union, labour organization or
collective bargaining unit. To the best knowledge of the Companies,
the employees of the Companies have no intention to and have not
threatened to organize or join a union, labour organization or
collective bargaining unit.
(h) Aliens.
All employees of the Companies are citizens of, or are authorized to
be employed in, The Netherlands.
Section 3.12 Employee Arrangements.
The Companies have not entered into any Employee Arrangements within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended: "ERISA".
Section 3.13 Absence of Certain Changes.
Except as set forth separately for Mutarestes, Pluripharm and DNW in Schedule
3.13, since December 31, 1995, the Companies have not
<PAGE> 15
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(a) suffered any material adverse change, whether or not caused by any
deliberate act or omission of the Companies or any Shareholder, in
their condition (financial or otherwise), operations, assets,
liabilities, business or prospects;
(b) contracted for the purchase of capital assets having a cost in excess
of 50,000 Dutch Guilders (individually or in the aggregate) or paid
capital expenditures in excess of 50,000 Dutch Guilders (individually
or in the aggregate);
(c) incurred any indebtedness for borrowed money or issued or sold any
debt securities;
(d) incurred or discharged any liabilities or obligations except in the
ordinary course of business;
(e) paid any amount on any indebtedness prior to the due date, forgiven or
cancelled any debts or claims or released or waived any rights or
claims;
(f) mortgaged, pledged or subjected to any security interest, lien, lease
or other charge or encumbrance any of its properties or assets;
(g) suffered any damage or destruction to or loss of any assets (whether
or not covered by insurance) that has materially and adversely
affected, or could materially and adversely affect, its business;
(h) acquired or disposed of any assets except in the ordinary course of
business;
(i) written up or written down the carrying value of any of its assets;
(j) changed the costing system or depreciation methods of accounting for
its assets;
(k) waived any material rights or forgiven any material claims;
(l) lost or terminated any salaried employee, customer or supplier;
(m) increased the compensation of any director or officer;
(n) increased the compensation of any employee except in the ordinary
course of business;
(o) made any payments to or loaned any money to any person or entity
referred to in Section 3.30;
(p) formed or acquired or disposed of any interest in any corporation,
partnership joint venture or other entity;
<PAGE> 16
- 11 -
(q) redeemed, purchased or otherwise acquired, or sold, granted or
otherwise disposed of, directly or indirectly any of its capital stock
or securities or any rights to acquire such capital stock or
securities, or agreed to change the terms and conditions of any such
rights;
(r) entered into any agreement with any person or group, or modified or
amended in any material respect the terms of any such existing
agreement except in the ordinary course of business;
(s) entered into, adopted or amended any Employee Benefit Plan;
(t) entered into any other commitment or transaction or experienced any
other event that is material to this Agreement or to any of the other
agreements and documents executed or to be executed pursuant to this
Agreement or to the transactions contemplated hereby or thereby, or
that has materially and adversely affected, or could materially and
adversely affect, the condition (financial or otherwise), operations,
assets, liabilities, business or prospects of the Companies.
(u) declared, paid or made any dividends or distributions on its capital
stock, other than the dividend distribution for 1994, which is
reflected in the Financial Statements and has been paid in 1996 (the
"1994 Dividend") and a preclosing dividend representing part of the
retained earning as of December 31, 1995 which Mutarestes will pay to
each of NTP Consult B.V. ("NTP") and Nydima B.V. ("Nydima") of one
million Dutch Guilders each.
(v) entered into any agreement (oral or written) with any director,
officer or employee.
Section 3.14 Title; Leased Assets.
(a) Real Property. The Companies do not use other real property than the
Real Property used in the conduct of the business of the Companies as
referred to in Section 3.14(c). The Companies do not own or ever have
owned any real property neither have they or ever had they an interest
with respect to any real property.
(b) Personal Property. Except as set forth separately for Mutarestes,
Pluripharm and DNW in Schedule 3.14(b), the Companies have good, valid
and marketable title to all tangible and intangible personal property
owned by then (collectively, the "Personal Property"). The Personal
Property and the leased personal property referred to in Section
3.14(c) constitute the only personal property used in the conduct of
the business of the Companies.
<PAGE> 17
- 12 -
(c) Leases. A list and brief description of all leases of real and
personal property to which the Companies are a party, either as lessor
or lessee, are set forth separately for Mutarestes, Pluripharm and DNW
in Schedule 3.14(c). All such leases are valid and enforceable in
accordance with their respective terms except as may be limited by
applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally or the availability of equitable remedies.
(d) Right to Use Assets. Except for those assets acquired since March 31,
1996, which are listed separately for Mutarestes, Pluripharm and DNW
in Schedule 3.14 (d), all tangible and intangible assets used in the
conduct of the business of the Companies are reflected in the
Financial Statements in a manner that is in conformity with GAAP
applied on a consistent basis with prior periods. The Companies own,
lease or otherwise possess a right to use all assets used in the
conduct of the business of the Companies which will not be impaired by
the consummation of the transactions contemplated hereby.
Section 3.15 Commitments.
(a) Commitments; Defaults.
Except as set forth separately for Mutarestes, Pluripharm and DNW in
Schedule 3.15 and other than in the normal course of business, the
Companies have not entered into, nor are the Stock, the assets or the
business of the Companies bound by, whether or not in writing, any
(i) partnership or joint venture agreement;
(ii) deed of trust or other security agreement
(iii) guaranty or suretyship, indemnification or contribution
agreement or performance bond;
(iv) employment consulting or compensation agreement or
arrangement, including the election or retention in office
of any director or officer;
(v) labour or collective bargaining agreement;
(vi) debt instrument, loan agreement or other obligation
relating to indebtedness for borrowed money or money lent
or to be lent to another;
(vii) deed or other document evidencing an interest in or
contract to purchase or sell real property;
<PAGE> 18
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(viii) agreement with dealers or sales or commission agents,
public relations or advertising agencies, accountants or
attorneys;
(ix) lease of real or personal property whether as lessor,
losses, sublessor or noblesse;
(x) agreement between either Mutarestes, Pluripharm or DNW and
any affiliate of Mutarestes, Pluripharm or DNW;
(xi) agreement relating to any material matter or transaction
in which an interest is held by a person or entity that is
an affiliate of the Companies;
(xii) any agreement for the acquisition of services, supplies
equipment or other personal property and involving more
than 10,000 Dutch Guilders in the aggregate;
(xiii) powers of attorney;
(xiv) contracts containing noncompetition covenants;
(xv) any other contract or arrangement that involves either an
unperformed commitment in excess of 10,000 Dutch Guilders
or that terminates more than 30 days after the date
hereof;
(xvi) agreement relating to any material matter or transaction
in which an interest is held by any person or entity
referred to in Section 3.30;
(xvii) agreement providing for the purchase from a supplier of
all or substantially all of the requirements of the
Companies of a particular product or service; or
(xviii) any other agreement or commitment not made in the ordinary
course of business or that is material to the business or
financial condition of the Companies.
All of the foregoing (whether identified on Schedule 3.15 or not) are
hereinafter collectively referred to as the "Commitments." True,
correct and complete copies of the written Commitments, and true,
correct and complete written descriptions of the oral Commitments,
have heretofore been delivered or made available to Purchaser. There
are no existing defaults, events of default or events, occurrences,
acts or omissions that, with the giving of notice or lapse of time or
both, would constitute defaults by the Companies, and no penalties
have been incurred nor are amendments pending, with respect to the
Commitments, except as described in Schedule 3.15. The Commitments
are in full force
<PAGE> 19
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and effect and are valid and enforceable obligations of the parties
thereto in accordance with their respective terms, and no defenses,
offsets or counterclaims have been asserted or, to the best knowledge
of the Companies and Shareholders, may be made by any party thereto,
nor have the Companies waived any rights thereunder, except as
described in Schedule 3.15. The Companies has not received notice of
any default with respect to any Commitment.
(b) No Cancellation or Termination of Commitment.
Except as contemplated hereby, neither the Companies nor any
Shareholder have received notice of any plan or intention of any other
party to any Commitment to exercise any right to cancel or terminate
any Commitment or agreement, and neither the Companies nor any
shareholder know of any fact that would justify the exercise of such a
right. Neither the Companies nor any Shareholder currently
contemplates, or has reason to believe any other person or entity
currently contemplates, any amendment or change to any Commitment.
Except as listed in Schedule 3.15, none of the customers or suppliers
of the Companies have refused, or communicated that it will or may
refuse, to purchase or supply goods or services, as the case may be,
or have communicated that it will or may substantially reduce the
amounts of goods or services that it is willing to purchase from, or
sell to, the Companies.
Section 3.16 Insurance.
A list and brief description of all insurance policies of the Companies are set
forth separately for Mutarestes, Pluripharm and DNW in Schedule 3.16. All of
such policies are valid and enforceable policies, issued by insurers of
recognized responsibility in amounts and against such risks and losses as is
customary in the industry of the insured. Such insurance shall be outstanding
and duly in force without interruption up to and including the Closing Date.
True, complete and correct copies of all such policies have been provided to
Purchaser on or prior to the date hereof.
Section 3.17 Proprietary Rights.
(a) Ownership.
The Companies own all patents, trademarks, trade names, service marks,
copyrights, technology know how, trade secrets, manuals and plan
approvals, customer lists and other proprietary information
(collectively, the "Proprietary Rights"), if any, necessary to conduct
its business, or possesses adequate licenses or other rights, if any,
therefor, without conflict with the rights of others. Set forth
separately for Mutarestes, Pluripharm and DNW in Schedule 3.17 is a
true and correct description of the Proprietary Rights.
<PAGE> 20
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(b) Conflicting Rights of Third Parties
The Companies have the sole and exclusive right to use the Proprietary
Rights owned by them without infringing or violating the rights of any
third parties. Use of the Proprietary Rights does not require the
consent of any other person and the Proprietary Rights are freely
transferable. No claim has been asserted by any person to the
ownership of or right to use any Proprietary Right or challenging or
questioning the validity or effectiveness of any license or agreement
constituting a part of any Proprietary Right, and neither the
Companies nor any Shareholder knows of any valid basis for any such
claim. Each of the Proprietary Rights is valid and subsisting, has
not been cancelled, abandoned or otherwise terminated and, if
applicable, has been duly issued or filed.
(c) Claims of Other Persons.
The Companies and Shareholders have no knowledge of any claim that, or
inquiry as to whether, any product, activity or operation of the
Companies infringes upon or involves, or has resulted in the
infringement of, any proprietary right of any other person,
corporation or other entity; and no proceedings have been instituted,
are pending or are threatened that challenge the rights of the
Companies with respect thereto. The Companies have not given and are
not bound by any agreement of indemnification for any Proprietary
Right as to any property manufactured, used or sold by them.
Section 3.18 Taxes.
(a) Taxes and Tax Returns.
The Companies have duly and timely filed with the appropriate
governmental agencies all corporate, franchise, property, sales, use,
payroll, withholding and other tax returns (including information
returns) and reports required to be filed by The Netherlands or any
jurisdiction or any political subdivision. All such tax returns or
report are complete and accurate and properly reflect the taxes of the
Companies for the periods covered thereby. The Companies have paid or
accrued all taxes, penalties and interest which have become due with
respect to any returns that they have filed and any assessments of
which they are aware. The Companies are not delinquent in the payment
of any tax, assessment or governmental charge. No tax deficiency or
delinquency has been asserted against the Companies. There is no
unpaid assessment, proposal for additional taxes, deficiency or
delinquency in the payment of any of the taxes of the Companies that
could be asserted by any taxing authority. There is no taxing
authority audit of the Companies pending, or to the knowledge of the
Companies or Shareholders threatened, and the results of any completed
audits are properly reflected in the Financial Statements. The
Companies have not violated any national, local or foreign tax law.
The Companies have not granted an
<PAGE> 21
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extension to any taxing authority of the limitation period during
which any tax liability may be assessed or collected. All monies
required to be withheld by the Companies and paid to governmental
agencies for all income, social security, unemployment insurance,
sales excise, use and other taxes have been (i) collected or withheld
and either paid to the respective governmental agencies or set aside
in accounts for such purpose or (ii) properly reflected in the
Financial Statements of the Companies. The liabilities (including
deferred taxes) shown in the Financial Statements as of the March
Balance Sheet and to be accrued on the books and records of the
Companies through the Closing Date for taxes, interest and penalties
are and will be adequate accruals and have been and will be accrued in
a manner consistent with the practices utilized for accruing tax
liabilities in the tax year ended December 31, 1995 and take into
account net operating losses, investment credits and other carryovers
for periods ended prior to the Closing Date.
(b) Tax Related Matters.
Shareholders are not foreign persons, as such term is referred to in
Section 1445(b)(2) of the Code. The Companies are not, and in prior
years have not been, a member of an affiliated group, as such term is
defined in Section 1504 of the Code, filing a consolidated return.
None of the assets of the Companies constitute property that
Purchaser, or any affiliate of Purchaser, will be required to treat as
being owned by another person pursuant to the "Safe Harbor Lease"
provisions of Section 168(f)(8) of the Code prior to repeal by the Tax
Equity and Fiscal Responsibility Act of 1982. None of the assets of
the companies are or will be subject to a lease to a "tax exempt
entity" as such term is defined in Section 168(h)(2) of the Code. The
Companies have not at any time consented, and Shareholders will not
permit the Companies to elect to have the provisions of Section
341(f)(2) of the Code apply to it. The Companies have not voluntarily
or involuntarily changed a method of accounting resulting in the
Companies' inclusion of amounts in income pursuant to adjustments
under Section 481 of the Code. The Shareholders have paid all income
and capital gains taxes with respect to the Companies.
(c) Any return of taxes paid by the Companies in relation to fiscal years
before 1996 will be for the benefit of the Shareholders.
Section 3.19 Compliance with Laws.
The Companies have complied with all laws, regulations and licensing
requirements and has filed with the proper authorities all necessary statements
and reports. There are no existing violations by the Companies or Shareholders
of any nationally or local law or regulation that could affect the property or
business of the Companies. The Companies possess all necessary licenses,
<PAGE> 22
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franchises, permits and governmental authorizations to conduct their business
as now conducted, all of which are listed separately for Mutarestes, Pluripharm
and DNW in Schedule 3.19.
Section 3.20 Finder's Fee.
Neither the Companies nor any Shareholder has incurred any obligation for any
finder's, broker's or agent's fee in connection with the transactions
contemplated hereby.
Section 3.21 Litigation.
Except as described separately for Mutarestes, Pluripharm and DNW in Schedule
3.21, there are no legal actions or administrative proceedings or
investigations instituted, or to the best knowledge of the Companies or
Shareholders threatened, against or affecting, or that could affect, the
Companies, any of the Stock, or the business of the Companies. Neither the
Companies nor Shareholders are (a) subject to any continuing court or
administrative order, writ, injunction or decree applicable specifically to the
Companies or to their business, assets, operations or employees or (b) in
default with respect to any such orders writ, injunction or decree. Neither
the Companies nor Shareholders know of any basis for any such action,
proceeding or investigation. All surety bonds necessary for the Companies to
do business have been posted and no claims against such bonds have been made.
Except as set forth separately for Mutarestes, Pluripharm and DNW in Schedule
3.21, no collateral is posted on such bonds.
Section 3.22 Accuracy of Information Furnished.
All information furnished to Purchaser by the companies or any
Shareholder hereby or in connection with the transactions contemplated hereby
is true, correct and complete in all respects. Such information states all
facts required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which such statements are made,
true, correct and complete.
Section 3.23 Condition of Fixed Assets.
All of the plants,, structures and equipment owned by the Companies are in good
condition and repair for their intended use in the ordinary course of business
and conform in all material respects with all applicable ordinances,
regulations and other laws and there are no known latent defects therein.
<PAGE> 23
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Section 3.24 Inventory.
Except as set forth separately for Mutarestes, Pluripharm and DNW in Schedule
3.24 and reserved for in the Financial Statements in accordance with GAAP, all
of the inventory owned by the Companies is in good, current, standard and
merchantable condition and is not obsolete or defective. The Companies have
presently and at the Closing Date will have, the types and quantities of
inventories appropriate, taken as a whole, to conduct its business consistently
with past practices.
Section 3.25 Beats of Account.
The books of account of the Companies have been kept accurately in the ordinary
course of business, the transactions entered therein represent bona fide
transactions and the revenues, expenses, assets and liabilities of the
Companies have been properly recorded in such books.
Section 3.26 [Initially omitted]
Section 3.27 Distributions and Repurchases.
Except as set forth separately for mutarestes Pluripharm and DNW in Schedule
3.27, since December 31, 1995, no distribution, payment or dividend of any kind
has been declared or paid by the Companies on any of its capital stock (other
than the Pre-Closing Dividend and the 1994 Dividend) . since December 31, 1995,
no repurchase of any of the capital stock of the Companies has been approved or
effected by the Companies.
Section 3.28 Customers and Suppliers.
Set forth separately for Mutarestes, Pluripharm and DNW in Schedule 3.28 is (a)
a complete and accurate list of the fifteen largest customers of the Companies
in terms of sales for each of the last three fiscal years and the current
fiscal year to date, showing,, with respect to each, the name, address and
pricing and sales records relating to such customer; (b) a complete and
accurate list of the fifteen largest suppliers of the Companies in terms of
dollar volume of transactions for each of the last three fiscal years and the
current fiscal year to date, showing,, with respect to each, the name, address
and aggregate dollar volume of purchases from such supplier; and (c) a complete
and accurate list of the standard prices and any applicable discounts by
customer name for the Companies.
Section 3.29 Product Warranties
Except as not forth separately for Mutarestes, Pluripharm and DNW in Schedule
3.29, there is no claim against the Companies on account of product warranties
or with respect to the manufacture, sale or rental of defective products and
there is to the best knowledge of the
<PAGE> 24
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Shareholders no basis for any such claim on account of defective products
heretofore manufactured, sold or rented.
Section 3.30 Ownership Interests of Interested Persons.
Except as set forth separately for Mutarestes Pluripharm and DNW in Schedule
3.30, no officer, supervisory employee, director or shareholder of the
Companies, or their respective spouses or children,, owns directly or
indirectly, on an individual or joint basis, any material interest in, or
serves as an officer or director of, any customer or supplier of the Companies,
or any organization that has a material contract or arrangement with the
companies.
Section 3.31 Investments in Competitors.
No Shareholder owns directly or indirectly any interests or has any investment
in any corporation, business or other person that is a competitor of the
Companies except as disclosed with respect to Phardis B.V.
Section 3.32 Environmental Matters.
Except as set forth separately for Mutarestes, Pluripharm and DNW in Schedule
3.22, the Companies are not currently in violation of, or subject to any
existing, pending or threatened investigation or inquiry by any governmental
authority or to any remedial obligations under, any laws or regulations
pertaining to health or the environment (hereinafter sometimes collectively
called "Environmental Laws") , and this representation and warranty would
continue to be true and correct following disclosure to the applicable
governmental authorities of all relevant facts conditions and circumstances, if
any, pertaining to the assets and operations of the Companies. To the best
knowledge of the Companies and Shareholders, the assets of the Companies have
never been used in a manner that would be in violation of any of the
Environmental Laws. The Companies have not obtained and are not required to
obtain, and the Companies have no knowledge of any reason Purchaser will be
required to obtain, any permits, licenses or -similar authorizations to
construct, occupy,, operate or use any buildings, improvements, fixtures and
equipment owned or leased by the Companies by reason of any Environmental Laws
Section 3.33 Certain Payments.
Neither the Companies nor Shareholders nor any director, officer or employee of
the Companies has paid or caused to be paid, directly or indirectly, in
connection with the business of the Companies: (a) to any government or agency
thereof or any agent of any supplier or customer any bribe, kickback or other
similar payment or (b) any contribution to any political party or candidate
(other than from personal funds of directors, officers or employees not
reimbursed by their respective employers or as otherwise permitted by
applicable law).
<PAGE> 25
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Section 3.34 Government Inquiries.
Since December 31, 1995, there have been no inspection reports, questionnaires,
inquiries, demands or requests for information received by the Companies or
Shareholders from, or any material statement, report or other document filed by
the Companies with, the government of The Netherlands or any administrative
agency of The Netherlands.
Section 3.35 [Initially Omitted]
Section 3.36 Status of Shareholders.
Each Shareholder has the knowledge and experience necessary to evaluate an
investment in Purchaser by acquiring the Share Consideration and is able to
bear the economic risk of loss of his investment in Purchaser. Each
Shareholder is an "accredited investor," as that term is defined in Rule 501(a)
of Regulation D under the Securities Act, Each Shareholder is acting on his own
behalf in connection with the investigation and examination of Purchaser and
his decision to execute these documents and consummate the transactions
contemplated hereby, Each Shareholder is acquiring his portion of the Share
Consideration for his own account, and not with a view of distributions Each
Shareholder acknowledges that the Share Consideration is not registered and may
not be sold or transferred in the absence of registration under the Securities
Act and applicable state securities laws, unless an exemption exists therefor.
ARTICLE IV. Representations and Warranties of Purchaser and Euromed
Purchaser and EuroMed represent and warrant that the following are true and
correct as of the date hereof and will be true and correct through the
Effective Date as if made an that date:
Section 4.01 Organization and Good Standing.
Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of The Netherlands,, with all requisite corporate power
and authority to carry on the business in which it is engaged, to own the
properties it owns, to execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
Section 4.02 Authorization and Validity.
The execution, delivery and performance by Purchaser of this Agreement and the
other agreements contemplated hereby, and the consummation of the transactions
contemplated hereby and thereby,, have been duly authorized by Purchaser, This
Agreement and each other agreement contemplated hereby have boon or will be as
of the Closing Date duly executed and delivered by Purchaser and constitute or
will constitute legal, valid and binding obligations of Purchaser, enforceable
against Purchaser in accordance with their respective terms, except as
<PAGE> 26
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may be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or the availability of equitable remedies.
Section 4.03 No Violation.
Neither the execution, delivery or performance of this Agreement or the other
agreements contemplated hereby nor the consummation of the transactions
contemplated hereby or thereby will (a) conflict with, or result in a violation
or breach of the terms, conditions and provisions of, or constitute a default
under, the Articles of Incorporation or Bylaws of Purchaser or any agreement,
indenture or other instrument under which Purchaser is bound or (b) violate or
conflict with any judgment decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or body having
jurisdiction over Purchaser or the properties or assets of Purchaser.
Section 4.04 Finder's Fee.
Purchaser has not incurred any obligation for any finder's, broker's or agents
fee in connection with the transactions contemplated hereby.
Section 4.05 Commission Reports.
Since May 15, 1995, Purchaser's parent company, EuroMed, has filed all forms,
documents and reports with the Commission required to be filed by it pursuant
to federal securities laws and the Commission rules and regulations thereunder
(the "Commission Reports"), all of which complied in all material respects with
all applicable requirements of the Securities Act and the Exchange Acto The
Commission Reports do not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein to make the
statements contained therein not misleading.
Section 4.06 Financial Statements.
The consolidated balance sheets and the related statements of income,
shareholders,' equity and cash flow (including the related notes thereto) of
Purchaser and its consolidated subsidiaries included in the Commission Reports
complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the Commission with
respect thereto, have been prepared in accordance with GAAP applied on a basis
consistent with prior periods (except as otherwise noted therein) and present
fairly the consolidated financial position of Purchaser and its consolidated
subsidiaries as of their respective dates, and the results of their operations
and their cash flow for the periods presented therein.
<PAGE> 27
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Section 4.07 Absence of Certain Changes.
Except as disclosed in the Commission Reports, since May 15, 1996, the business
of Purchaser has been carried on in the ordinary course and there has not been
any adverse change in their business, financial condition, results of
operations, assets or liabilities which could reasonably be expected to have a
material adverse affect on Purchaser and its consolidated subsidiaries, taken
as a whole.
Section 4.08 Authorization for share Consideration.
Purchaser has taken, or will have taken prior to the Closing, all corporate
action necessary to cause the issuance of the shares of EuroMed Stock
constituting the Share Consideration, The EuroMed Stock issued to Shareholders
pursuant to this Agreement will, when issued, be duly authorized, validly
issued, fully paid and nonassessable, free and clear of any lions, claims,
charges or security interests, and no share holder of Purchaser will have any
preemptive right of subscription or purchase in respect thereof. EuroMed
guarantees that the representations and warranties given by Purchaser are true
and correct.
Section 4.09 Subsidiary of EuroMed.
EuroMed owns directly or indirectly all of the issued and outstanding shares of
capital in Purchaser.
ARTICLE V. The Companies' and Shareholders' Covenants
The Companies and Shareholders jointly and severally agree that between the
date hereof and the Closing:
Section 5.01 Consummation of Agreement.
The Companies and Shareholders shall use their best efforts to cause the
consummation of the transactions contemplated hereby in accordance with their
terms and conditions.
Section 5.02 [Initially Omitted]
Section 5.03 Business Operations.
The Companies shall operate their business in the ordinary course and will not
introduce any now method of management or operation. The Companies and
shareholders shall use their best efforts to preserve the business of the
Companies intact, to retain the present customers and suppliers so that they
will be available to Purchaser after the Closing. The Companies and
Shareholders shall not take any action that could adversely affect the
condition (financial or
<PAGE> 28
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otherwise) , operations, assets, liabilities, business or prospects of the
Companies without the prior written consent of Purchaser or take or fail to
take any action that would cause or permit the representations made in Article
III to be inaccurate on the Effective Date or preclude the Companies and
Shareholders from making such representations and warranties as of the
Effective Data. Except as contemplated herein, the Companies will not (a)
declare, pay or make any dividends or distributions on its capital stock (other
than the "Pre-Closing Dividend" and the 1994 Dividend); (b) enter into any
agreement (oral or written) with its directors, officers or salaried employees;
(c) increase the compensation of its directors, officers or salaried employees;
(d) make capital expenditures (or enter into commitments to make capital
expenditures) in excess of 50,000 Dutch Guilders (either individually or in the
aggregate); (e) issue any capital stock or capital stock equivalents onto
(including options and warrants) to purchase capital stock of the Companies;
(f) incur indebtedness or other liabilities other than in the ordinary course
of business and consistent with past practice; or (q) redeem any capital stock
of the Companies.
Section 5.04 Access.
The Companies and Shareholders shall permit Purchaser and its authorized
representatives full access to, and make available for inspection, all of the
assets and business of the Companies, including their employees, customers and
suppliers, and permit Purchaser and its authorized representatives to inspect
and make copies of all documents, records and information with respect to the
affairs of the Companies as Purchaser and its representatives may request, all
for the sole purpose of permitting Purchaser to become familiar with the
business and assets and liabilities of the Companies.
Section 5.05 Environmental Audits.
The Companies and Shareholders shall cooperate with and provide reasonable
assistance to Purchaser in obtaining any environmental studies or audits with
respect to the property owned and leased by the Companies as requested by
Purchaser.
Section 5.06 Material Change.
The Companies and Shareholders shall promptly inform Purchaser in writing of
any material adverse change in the condition (financial or otherwise),
operation, assets, liabilities, business or prospects of the Companies.
Notwithstanding the disclosure to Purchaser of any such material adverse
change, the companies and Shareholders shall not be relieved of any liability
for, nor shall the providing of such information by the Companies to Purchaser
be deemed a waiver by Purchaser of, the broach of any representation or
warranty of the Companies and Shareholders contained in this Agreement.
<PAGE> 29
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Section 5.07 Approvals of Third Parties.
The Companies and Shareholders shall use their best efforts to secure, as soon
as practicable after the date hereof, all necessary approvals and consents of
third parties to the consummation of the transactions contemplated hereby.
Section 5.08 Employee Matter.
The Companies shall not, without the prior written approval of Purchaser,
except as required by law: (a) adopt, amend or terminate any Compensation Plan,
Employment Agreement or Employee Policies and Procedures; (b) institute settle
or dismiss any employment litigation; (c) enter into,, modify, amend or
terminate any agreement with any unions labour organization or collective
bargaining unit; or (d) take or fail to take any action with respect to any
past or present employee of the Companies that could adversely affect the
business of the Companies,
Section 5.09 Employee Benefit Plans.
The companies shall not, without the prior written approval of Purchaser except
as required by law: (a) adopt, amend or terminate any Employee Benefit Plan;
(b) take any action that would deplete the assets of any Employee Benefit Plan,
other than payment of benefits in the ordinary course to participants and
beneficiaries; (c) fail to pay any premium or contribution due or with respect
to any Employee Benefit Plan; (d) fail to file any return or report with
respect to any Employee Benefit Plans or (e) take or fail to take any action
that could adversely affect any Employee Benefit Plan.
Section 5.10 Contracts.
Except with Purchaser's prior written consent, the companies shall not waive
any right or cancel any contract, debt or claim or assume or enter into any
contract, lease, license, obligation, indebtedness, commitment, purchase or
sale except in the ordinary course of business.
Section 5.11 Changes in Inventory.
The Companies shall not alter the physical contents or character of its raw
materials, work-in-process or finished goods inventory or the mixture of
products in its finished goods inventory so as to affect the nature of its
business or result in a material change in the total dollar valuation thereof.
Section 5.12 Capital Assets; Payments of Liabilities.
The companies shall not, without the prior written approval of Purchaser (a)
acquire or dispose of any capital asset having an initial cost of 50,000 Dutch
Guilders or more, or (b) discharge
<PAGE> 30
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or satisfy any lion or encumbrance or pay or perform any obligation or
liability other than (i) liabilities and obligations reflected in the Financial
Statements or (ii) current liabilities and obligations incurred in the ordinary
course of business since March 31, 1996 and, in either case (i) or (ii) above,
only as required by the express terms of the agreement or other instrument
pursuant to which the liability or obligation was incurred.
Section 5.13 Mortgages, Liens and Guaranties.
The Companies shall not, without the prior written approval of Purchaser, enter
into or assume any mortgage, pledge conditional sale or other title retention
agreement, permit any security interest, lion, encumbrance or claim of any kind
to attach to any of its assets, whether now owned or hereafter acquired, or
guarantee or otherwise become contingently liable for any obligation of
another, except obligations arising by reason of endorsement for collection and
other similar transactions in the ordinary course of business, or make any
capital contribution or investment in any corporation business or other person.
Section 5.14 No Negotiation with Others.
Neither the Companies nor any Shareholder shall solicit or participate in
negotiations with (and the Companies and the Shareholders shall use their best
efforts to prevent any affiliate, shareholder, director, officer, employee or
other representative or agent of the Companies from negotiating with,
soliciting or participating in negotiations with) any third party with respect
to the sale of the business of the Companies or any transaction inconsistent
with those contemplated hereby.
Section 5.15 Backlog.
The backlog of the Companies shall only be increased or decreased in the
ordinary course of business.
ARTICLE VI. Purchaser's Covenants
Purchaser and EuroMed agree that between the date hereof and the Closing,
Purchaser shall use its beat efforts to cause the consummation of the
transactions contemplated hereby in accordance with their terms and conditions.
ARTICLE VII. Purchaser's Conditions Precedent
Except as may be waived in writing by Purchaser, the obligations of Purchaser
hereunder are subject to the fulfillment at or prior to the Closing Date of
each of the following conditions, and
<PAGE> 31
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Purchaser shall be entitled to terminate this Agreement if each of the
following are not so fulfilled or waived:
Section 7.01 Representations and Warranties.
The representations and warranties of the Companies and Shareholders contained
herein shall have been true and correct in all respects when initially made and
shall be true and correct in all respects an of the Effective Date.
Section 7.02 Covenants and Conditions.
The Companies and Shareholders shall have performed and complied with all
covenants and conditions required by this Agreement to be performed and
complied with by the Companies and Shareholders prior to the Closing Date.
Section 7.03 Proceedings.
No action, proceeding or order by any court or governmental body or agency
shall have been threatened, orally or in writing, asserted, instituted or
entered to restrain or prohibit the carrying out of the transactions
contemplated hereby.
Section 7.04 No Material Adverse Change.
No material adverse change (other than the entering into force of the Wet
Maximumprijzen Geneesmiddelen, "the Act maximum Prices of Medicines") in the
condition (financial or other wise), operations, assets, liabilities, business
or prospects of the Companies shall have occurred since December 31, 1995,
whether or not such change shall have boon caused by the deliberate act or
omission of the Companies or any Shareholder.
Section 7.05 [Initially Omitted)
Section 7.06 [Initially Omitted)
Section 7.07 [Initially Omitted]
Section 7.08 Approvals.
All authorizations, approvals, consents and waivers of any governmental
authority or third party, each as Purchaser deems necessary or desirable to
consummate of the transactions contemplated by this Agreement, shall have boon
obtained and shall not be terminated, suspended or withdrawn as of the Closing
Date.
<PAGE> 32
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Section 7.09 [Initially Omitted]
Section 7.10 [Initially Omitted]
Section 7.11 PTC Approval.
Approval of the transactions contemplated by the Agreement by the United States
Federal Trade commission (if required).
Section 7.12 [Initially Omitted]
Section 7.13 Financial Statements.
The preparation by the accountants of the Companies of Financial Statements
adequate for EuroMed to comply with the rules and regulations of the United
States Securities Laws.
Section 7.14 Continuing Business Pluripharm.
So long as the shareholders continue to hold at least lot of the total
outstanding EuroMed stock, EuroMed will continue to hold, directly or
indirectly, the shares in Pluripharm, and Euromed will not sell or discontinue
the business of Pluripharm, unless agreed by the Shareholders.
Section 7.15 Closing Deliveries.
Purchaser shall have received all documents, duly executed in form satisfactory
to Purchaser and its counsel, referred to in Section 9.01.
ARTICLE VIII. The Companies' and Shareholders' Conditions Precedent
Except an may be waived in writing by the Companies and Shareholders, the
obligations of the Companies and Share holders hereunder are subject to
fulfillment at or prior to the Closing Date of each of the following
conditions, and Shareholders shall be entitled to terminate this Agreement if
each of the following are not so fulfilled or waived:
Section 8.01 Representations and Warranties.
The representations and warranties of Purchaser contained herein shall be true
and correct in all respects as of the Effective Date.
<PAGE> 33
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Section 8.02 Covenants and Conditions.
Purchaser shall have performed and complied in all material respects with all
covenants and conditions required by this Agreement to be performed and
complied with by it prior to the Closing Date.
Section 8.03 Proceedings.
No action, proceeding or order by any court or governmental body or agency
shall have been threatened in writing, asserted, instituted or entered to
restrain or prohibit the carrying out of the transactions contemplated hereby.
Section 8.04 Shareholders' Satisfaction.
The Shareholders' satisfaction in all respects with its review and analysis of
the assets, liabilities, business condition (financial or otherwise) and
prospects of Euromed.
Section 8.05 No Material Adverse Change.
No material adverse change (other than the entering into force of the wet
Maximumprijzen Genessmiddelen, "the Act Maximum Prices of Medicines") in the
condition (financial or other wise), operations, assets, liabilities, business
or prospects of the Companies shall have occurred since December 31, 1995,
whether or not such change shall have been caused by the deliberate act or
omission of the Purchaser.
Section 8.06 Closing Deliveries.
The Companies or Shareholders, as the case may be, shall have received all
documents referred to in Section 9.02.
ARTICLE IX. Closing Deliveries.
Section 9.01 Deliveries of the Companies and Shareholders.
At the Closing, the Companies and Shareholders shall deliver to Purchaser the
following, all of which shall be in form and content satisfactory to Purchaser
and its counsel and dated as of the Effective Date unless otherwise specified:
(a) Shareholders will cooperate in the execution of a notarial deed
whereby the Stock will be transferred and conveyed to Purchaser;
(b) [Initially Omitted]
<PAGE> 34
- 29 -
(c) [Initially Omitted]
(d) certificates of the Presidents of the Companies and of Shareholders,
each dated as of the Closing Date, (i) as to the performance of and
compliance by the Companies and Shareholders with all covenants
contained herein an and as of the Closing Date and (ii) certifying
that all conditions precedent of the Companies and Shareholders to the
Closing have been satisfied;
(e) [Initially Omitted]
(f) [Initially Omitted]
(g) [Initially Omitted]
(h) [Initially Omitted]
(i) [Initially Omitted]
(j) The Consulting, Management and Noncompetition Agreements in the form
to be agreed upon,, based an the draft attached hereto as Exhibit C,
by each of Doets, Roozekrans and Hinnen (the "Consulting, Management
and Noncompetition Agreements"), duly executed by each Shareholder;
(k) an opinion of Stibbe Simont Monahan Duhot, counsel to the Companies
and Shareholders, in the form satisfactory to Purchaser; and
(l) [Initially Omitted]
(m) such other instrument or instruments of transfer as shall be necessary
or appropriate, as Purchaser or its counsel shall reasonably request,
to vest in Purchaser good and marketable title to the Stock.
Section 9.02 Deliveries of Purchaser.
At the Closing, Purchaser shall deliver the following to the Companies or the
appropriate party, each of which shall be dated as of the Closing Date unless
otherwise specified:
(a) the Cash Consideration in immediately available funds to be paid into
the account of civil law notaries Van Apeldoorn & Taselaar at ING
Bank, bankaccount number: 69.26.60.038;
(b) the Share Consideration;
<PAGE> 35
- 30 -
(c) a copy of the resolutions of the Board of Directors of EuroMed
authorizing the execution, delivery and performance of this Agreement
and all related documents and agreements, each certified by
Purchaser's secretary as being true and correct copies of the
originals thereof subject to no modifications or amendments;
(d) [Initially Omitted]
(e) a certificate of the President of Purchaser, dated as of the closing
Date, (i) as to the performance of and compliance by Purchaser with
all covenants contained heroin on and as of the Closing Date and (ii)
certify ing that all conditions precedent of Purchaser to the Closing
have been satisfied;
(f) [Initially Omitted]
(g) [Initially Omitted]
(h) [Initially Omitted]
(i) the Consulting, Management and Noncompetition Agreements, duly
executed by Purchaser;
(j) an opinion of Jackson & Walker, L.L.P., counsel to Purchaser in the
form satisfactory to the shareholders; and
ARTICLE X. Transfer Restrictions.
Section 10.01 Restriction Period.
During the period commencing on the Closing Date and ending on the two-year
anniversary of the Closing Date (the "Restriction Period"), the restriction
described in Section 10.02 shall apply to the Share Consideration. At the end
of the Restriction Period such restrictions shall cease to apply to the Share
consideration.
Section 10.02 Restrictions.
(a) Each Shareholder agrees that during the Restriction Period he will not
sell, assign, transfer pledge, or otherwise encumber or dispose of all
or any portion of the Share Consideration, directly or indirectly, and
any attempt by either Shareholder to do so shall be ineffective. If
any Share Consideration shall be sold, transferred or disposed of
other than in accordance with the terms and conditions of the
Agreement, EuroMed shall have the right to treat such transfer as if
were void, in enforcing such rights, EuroMed may hold and refuse to
transfer any of the Share Consideration or any certificate therefor
<PAGE> 36
- 31 -
presented to it for transfer, in addition to and without prejudice to
any and all other rights which may be available to it. The transfer
restrictions contained herein shall inure to the benefit of and be
binding upon the respective heirs, legal representatives, successors
and assigns of the parties hereto. Notwithstanding the Restriction
Period Doets and Roozekrans have the right to sell or register 200,000
shares each before 31 December 1996. The parties can mutually agree
to shorten the duration of Restriction Period.
(b) B.V. Wisteria and Mr A.F. Hinnen ("Hinnen") agree that:
- before expiration of the Restriction Period B.V. Wisteria
or Hinnen will not directly or indirectly sell, assign,
transfer, pledge or dispose of the shares in EuroMed Stock
held (directly or indirectly) by them, except when
mutually agreed otherwise between Hinnen and the
Shareholders;
- B.V. Wisteria or Hinnen will not sell, assign, transfer,
pledge or dispose of the shares in EuroMed Stock held by
them directly or indirectly without giving the opportunity
to the Shareholders to dispose of an equal proportion of
their shareholding in EuroMed simultaneously with B.V.
wisteria or Hinnen.
(c) It is envisaged that EuroMed will issue a further 100,000 shares of
EuroMed Stock to customers of its operating company Galenica B.V. The
parties and B.V. Wisteria and Hinnen agree that, if such a share issue
will be effected, the customers of Pluripharm will also be entitled to
acquire simultaneously with such customers of Galenica B.V. and at
equal conditions a total of 100,000 shares.
Section 10.03 Restrictions on Corresponding Securities and Assets.
Any other securities or assets (other than ordinary cash dividends) that are
received by the Shareholder with respect to the Share Consideration while they
are still subject to the restrictions described in Section 10.02 above will be
subject to the same restrictions.
Section 10.04 Legends.
All certificates representing Share Consideration shall be conspicuously
legended as follows:
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER PURSUANT TO AN AGREEMENT BETWEEN EUROMED AND
THE SHAREHOLDER AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED
OF EXCEPT AS THEREIN PROVIDED. EUROMED WILL FURNISH A COPY OF
RESTRICTIONS TO THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE
ON REQUEST TO EUROMED AT ITS PRINCIPAL PLACE OF BUSINESS ON REGISTERED
OFFICE."
<PAGE> 37
- 32 -
(b) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THE SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER THE
SECURITIES ACT OF 1933, OR AN OPINION OF COUNSEL TO THE CORPORATION
THAT SUCH REGISTRATION IS NOR REQUIRED."
Upon the termination of the restrictions set forth in Section 10.2 above, at
the request of the Shareholders, EuroMed shall take such steps as are necessary
to have the restrictive legend in clause (a) removed from all certificates
represents ing Share Consideration.
ARTICLE XI. Board Membership
Section 11.01 Board Membership.
As long as Doets and Roozekrans own, individually or in the aggregate, at least
500,000 shares of EuroMed Stock, B.V, Wisteria, a personal holding company of
Hinnen which is a shareholder of Euromed, shall use its best efforts to cause
the Board of Directors Of EuroMed to nominate two persons selected by Doets and
Roozekrans for election to the Board of Directors of the Company. As long as
Doets and Roozekrans own, individually or in the aggregate, at least 200,000
until 499,999 shares of EuroMed Stock B.V. Wisteria shall use its best efforts
to causa the Board of Directors Of EuroMed to nominate one person selected by
Doets and Roozekrans for election to the Board of Directors of the Company.
B.V. Wisteria agrees to vote all of its shares of EuroMed Stock in favour of
such nominees.
Section 11.02 Obligations B.V. Wisteria.
If B.V. Wisteria transfers any of its shares, it is obliged to transfer the
obligation of Section 11.01 to the new owners of the shares so that the new
owner must respect these obligations as well. BV. Wisteria will notify Doets
and Roozekrans of the tentative transfer of shares prior to the transfer of its
shares.
ARTICLE XII. Remedies
Section 12.01 Indemnification by Shareholders.
Subject to the terms and conditions of this Article, Shareholders jointly and
severally agree to indemnify, defend and hold Purchaser and its directors,
officers, agents, attorneys and affiliates harmless from and against all
losses, claims, causes of action, obligations, demands, assessments, penalties,
liabilities, costs, damages, attorneys' fees and expenses (collectively,
"Damages"), asserted against or incurred by such indemnities by reason of or
resulting from:
<PAGE> 38
- 33 -
(a) a breach of any representation, warranty or covenant of the companies or
Shareholders contained herein, in any exhibits schedule, certificate or
financial statement delivered hereunder, or in any agreement executed in
connection with the transactions contemplated hereby and (b) the lawsuits and
other matters described on Schedule 3.21 (to the extent such Damages are in
excess of reserves relating to such litigation, if any, shown on the March
Balance Sheet).
Section 12.02 Indemnification by Purchaser.
Subject to the terms and conditions of this Article, Purchaser and EuroMed
hereby agree to indemnify, defend and hold Shareholders harmless from and
against all Damages asserted against or incurred by shareholders by reason of
or resulting from a breach of any representation warranty or covenant of
Purchaser contained herein or in any exhibit, schedule or certificate delivered
hereunder , or in any agreement executed in connection with the transactions
contemplated hereby.
Section 12.03 Conditions of Indemnification.
The respective obligations and liabilities of the companies and Shareholders
and Purchaser (the indemnifying Party,) to the other (the "party to be
indemnified") under Sections 12.01 and 12.02 with respect to claims resulting
from the assertion of liability by third parties shall be subject to the
following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid
prejudicing the indemnifying party's position) after receipt of notice
of commencement of any action evidenced by service of process or other
legal pleading the party to be indemnified shall give the indemnifying
party written notice thereof together with a copy of such claim,
process or other legal pleading, and the indemnifying party shall have
the right to undertake the defense thereof by representatives of its
own choosing and at its own expense; provided that the party to be
indemnified may participate in the defense with counsel of its own
Choice, the fees and expenses of which counsel shall be paid by the
party to be indemnified unless (i) the indemnifying party has agreed
to pay such fees and expenses, (ii) the indemnifying party has failed
to assume the defense of such action or (iii.) the named parties to
any such action (including any impleaded parties) include both the
indemnifying party and the party to be indemnified and the party to be
indemnified has been advised by counsel that there nay be one or more
legal defenses available to it that are different from or additional
to those available to the indemnifying party (in which case, if the
party to be indemnified informs the indemnifying party in writing that
it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to
assume the defense of such action on behalf of the party to be
indemnified, it being understood, however, that the indemnifying party
shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or
<PAGE> 39
- 34 -
circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys at any time for the party to be
indemnified, which firm shall be designated in writing by the party to
be indemnified). Except as set forth in Section 14.06, the failure to
promptly deliver a notice of an indemnity claim hereunder shall not
relive the indemnifying party of its obligation to the indemnified
party with respect to the such claim except to the extent that the
resulting delay is materially prejudicial to the defense of such
claim.
(b) In the event that the indemnifying party, by the 30th day after
receipt of notice of any such claim (or, if earlier, by the 10th day
preceding the day on which an answer or other pleading must be served
in order to prevent judgment by default in favour of the person
asserting such claim), does not elect to defend against such claim,
the party to be indemnified will (upon further notice to the
indemnifying party) have the right to undertake the defense,
compromise or settlement of such claim on behalf of and for the
account and risk of the indemnifying party and at the indemnifying
party's expense, subject to the right of the indemnifying party to
assume the defense of such claims at any time prior to settlement,
compromise or final determination thereof.
(c) Notwithstanding the foregoing, the indemnifying party shall not settle
any claim without the consent of the party to be indemnified unless
such settlement involves only the payment of money and the claimant
provides to the party to be indemnified a release from all liability
in respect of such claim. If the settlement of the claim involves
more than the payment of money, the indemnifying party shall not
settle the claim without the prior consent of the party to be the
party to be indemnified. The party to be indemnified and the
indemnifying party will each cooperate with all reasonable requests of
the other.
(d) A party making a claim must file its claim within a fixed term of 5
years after 31 december 1995 (therefore the latest on 31 december
2000) whereafter the right to claim indemnification expires& The total
amount of all indemnification paid hereunder either by Shareholders
collectively or by Purchaser and EuroMed collectively shall not exceed
the amount of 10 million Dutch Guilders.
Section 12.04 Waiver.
No waiver by any party of any default or breach by another party of any
representation, warranty, covenant or condition contained in this Agreement,
any exhibit or any document, instrument or certificate contemplated hereby
shall be deemed to be a waiver of any subsequent default or breach by such
party of the same or any other representation, warranty, covenant or condition,
No act, delay, omission or course of dealing on the part of any party in
exercising any right, power or remedy under this Agreement or at law or in
equity shall operate as a waiver thereof or otherwise prejudice any of such
party's rights, powers and remedies. All
<PAGE> 40
- 35 -
remedies, whether at law or in equity, shall be cumulative and the election of
any one or more shall not constitute a waiver of the right to pursue other
available remedies.
Section 12.05 Remedies Not Exclusive.
The remedies provided in this Article shall not be exclusive of any other
rights or remedies available to one party against the other, either at law or
in equity.
Section 12.06 Offset.
Any and all amounts owing or to be paid by any party hereto to any other party
hereto, hereunder or otherwise, shall be subject to offset and reduction Pro
tanto by any amounts that may be owing at any time by such other party to such
party in respect of the indemnification provisions contained herein or any
failure or breach of any representation, warranty or Covenant of such other
party under or in connection with this Agreement or any other agreement with
such party or any transaction contemplated hereby or thereby, as reasonably
determined by such party, If such party determines that such offset is
appropriate, notice shall be given to such other party of such determination at
least 10 days prior to the due date of the payment to be reduced. If the
conditions upon which the reduction is based are cured by such other party
prior to such due date, an determined by such party, the amount of such payment
shall not be so reduced.
Section 12.07 Costal Expenses and Legal Fees.
When the transactions contemplated hereby are consummated,, the costs and
expenses of both parties (including accountants and attorneys' fees and
expenses) will be borne by Pluripharm, when the transactions are not
consummated each party will bear its own costs, except that each party hereto
that is shown to have breached this Agreement or any other agreement
contemplated hereby agrees' to pay the costs and expenses (including reasonable
attorneys' fees and expenses) incurred by any other party in successfully (i)
enforcing any of the terms of this Agreement against such breaching party or
(ii) proving that another party breached any of the terms of this Agreement;
provided that, notwithstanding the foregoing, in the event the transactions
contemplated hereby are consummated, any and all costs and expenses incurred or
accrued by the Companies in connection with the negotiation and documentation
of this Agreement and the agreements contemplated hereby, the consummation of
the transactions contemplated hereby or otherwise in connection herewith, shall
be paid by, and be the obligations of , the Shareholders.
Section 12.08 Specific Performance.
The Companies and Shareholders acknowledge that a refusal by the Companies or
either Shareholders to consummate the transactions contemplated hereby will
cause irreparable harm to Purchaser, for which there may be no adequate remedy
at law and for which the ascertainment of damages would be difficult,
Therefore, Purchaser shall be entitled, in addition
<PAGE> 41
- 36 -
to, and without having to prove the inadequacy of, other remedies at law, to
specific performance of this Agreement, as well as injunctive relief (without
being required to post bond or other security).
Section 12.09 Tax Effect of Indemnification.
Notwithstanding any term or provision of this Agreement to the contrary, any
indemnity payments owed by one party to another party to this Agreement shall
be reduced by any tax benefits to the party claiming indemnity hereunder and
increased by any tax detriments to the party claiming indemnity hereunder.
ARTICLE XIII.
Section 13.01.
All parties waive their rights to rescind the Agreement.
ARTICLE XIV. Miscellaneous
Section 14.01 Amendment.
This Agreement may be amended, modified or supplemented only by an Instrument
in writing executed by all the parties hereto.
Section 14.02 [Initially Omitted]
Section 14.03 Parties In Interest; No Third Party Beneficiaries.
Except as otherwise provided herein, the terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties hereto. Neither this
Agreement nor any other agreement contemplated hereby shall be deemed to confer
upon any person not a party hereto or thereto any rights or remedies hereunder
or thereunder.
Section 14.04 [Initially Omitted]
Section 14.05 Severability.
If any provision of this Agreement is held to be illegal invalid or
unenforceable under present or future laws effective during the term hereof,
such provision shall be fully severable and this Agreement shall be construed
and enforced as if such illegal, invalid or unenforceable provision never
comprised a part hereof; and the remaining provisions hereof shall remain in
full force
<PAGE> 42
- 37 -
and affect and shall not be affected by the illegal invalid or unenforceable
provision or by its severance herefrom. Furthermore, in lieu of such illegal,
invalid or unenforceable provision, there shall be added automatically as part
of this Agreement a provision as similar in its terms to such illegal, invalid
or unenforceable provision as may be possible and be legal, valid and
enforceable.
Section 14.06 Survival of Representations, Warranties and Covenants.
The representations, warranties and covenants contained herein shall survive
the Closing and all statements contained in any certificate, exhibit or other
instrument delivered by or an behalf of the Companies, Shareholders or
Purchaser pursuant to this Agreement shall be deemed to have been
representations and warranties by the Companies and Shareholders or Purchaser,
an the case may be, and, notwithstanding any provision in this Agreement to the
contrary, shall survive the Closing for a period of three years, except for (a)
representations and warranties with respect to any tax or tax- related matters
or any ERISA matters, which shall survive the Closing until the running of any
applicable statutes of limitation and (b) indemnification provisions for the
violation of any Environmental Law, which shall survive the Closing and shall
continue indefinitely Notwithstanding the above, if prior to any expiration
date the indemnifying party shall have been notified of a claim for indemnity
hereunder and such claim shall not have been finally resolved or disposed of at
such date, any representation or warranty that is the basis for such claim
shall continue to survive as to such claim and shall remain a basis for
indemnity, to the extent of such claim only, until such claim is finally
resolved or disposed of.
Section 14.07 Governing Law.
This agreement and the rights and obligations of the parties hereto are
governed by and construed and enforced in accordance with the substantive laws
of the Netherlands. Any dispute arising under this Agreement shall be
exclusively settled by the competent Court of Arnhem, the Netherlands.
Section 14.08 Captions.
The captions in this Agreement are for convenience of reference only and shall
not limit or otherwise affect any of the terms or provisions hereof.
Section 14.09 Gender and Number.
When the context requires, the gender of all words used herein shall include
the masculine, feminine and neuter and the number of all words shall include
the singular and plural.
<PAGE> 43
- 38 -
Section 14.10 Reference to Agreement.
Use of the words "herein", "hereof", hereto and the like in this Agreement
shall be construed as references to this Agreement as a whole and not to any
particular Article, Section or provision of this Agreement, unless otherwise
noted.
Section 14.11 Confidentiality; Publicity and Disclosures.
(a) All copies of any information delivered to Purchaser pursuant to this
Agreement shall, upon the written request of the Companies, be
promptly returned to the Companies in the event this Agreement is
terminated, and Purchaser agrees that it will use any information
obtained from such review which is confidential only for purposes of
making its decision as to whether to consummate the transactions
contemplated herein and not for any other purposes. For purposes of
this Section 14.11(a), confidential information does not include
information which: (i) is or becomes generally available to the public
other than as a result of disclosure which is in violation of this
section; (ii) was known by Purchaser on a nonconfidential basis prior
to the disclosure thereof; or (iii) is acquired by Purchaser from a
third party who has no confidential commitment to the Companies with
respect to the same.
(b) Each party shall keep this Agreement and its terms confidential, and
shall make no press release or public disclosure, either written or
oral, regarding the transactions contemplated by this Agreement
without the prior knowledge and consent of the other parties hereto;
provided that the foregoing shall not prohibit any disclosure (i) by
press release, filing or otherwise that is required by law (including,
without limitation, federal securities laws), regulation or court or
administrative order, (ii) to advisors, financiers or lenders of any
party or to any party's directors, officers, employees and
representatives involved in the transactions contemplated herein or
(iii) by Purchaser in connection with obtaining financing for the
transactions contemplated by this Agreement and conducting an
examination of the operations and assets of the Companies.
Section 14.12 Notice.
Any notice or demand which is permitted or required hereunder will be deemed to
have been received (except as otherwise provided herein) (a) upon receipt when
personally delivered, (b) or one day after sent by overnight delivery by an
internationally recognized courier or telecopy providing confirmation or
receipt of delivery, or (c) three days after being sent by certified or
registered mail,, postage and charges prepaid, return receipt requested to the
addresses listed on Schedule 14.12 attached hereto, or at any other address
designated by any party hereto to all other parties hereto in writing.
<PAGE> 44
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Section 14.13 Further Instruments of Transfer.
Following the Closing, at the request of Purchaser, Shareholders shall deliver
any further instruments of transfer and take all reasonable action as may be
necessary or appropriate to (a) vest in Purchaser good and marketable title to
the Stock and (b) carry out more effectively the provisions of this Agreement
and to establish and protect the rights created in favour of the parties
hereunder or thereunder.
Section 14.14 Counterparts.
This Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of
the date first written above.
EUROMED EUROPE, B.V.
By:
----------------------------------------------
Its:
---------------------------------------------
EUROMED INC.
By:
----------------------------------------------
Its:
---------------------------------------------
- -------------------------------------------------
DR. A. DOETS
- -------------------------------------------------
DR. N. TH. P. ROOZEKRANS
<PAGE> 45
- 40 -
MUTARESTES B.V.
By:
----------------------------------------------
Its:
---------------------------------------------
PLURIPHARM INTERNATIONAL, B.V.
By:
----------------------------------------------
Its:
---------------------------------------------
FINANCIERINGSMAATSCHAPPIJ DE NIEUWE WERELD, B.V.
By:
----------------------------------------------
Its:
---------------------------------------------
B.V. WISTERIA (for agreement with articles 10.02 (b), 10.02 (b) and 11.02)
By:
----------------------------------------------
Its:
---------------------------------------------
DR. A.F. HINNEN (for agreement with articles 10.02 (b) and 10.02 (c))
<PAGE> 46
- 41 -
INDEX OF SCHEDULES
Schedule 3.03 Capitalization and Shareholders
Schedule 3.08 None
Schedule 3.10 Liabilities and Obligations
Schedule 3.11(a) None
Schedule 3.11(b) None
Schedule 3.11(c) Employment Agreements
Schedule 3.11(d) Employee Policies and Procedures
Schedule 3.11(a) None
Schedule 3.11(f) None
Schedule 3.13 Absence of Certain Changes
Schedule 3.14(a) None
Schedule 3.14(b) Personal Property
Schedule 3.14(c) Leases
Schedule 3.14(d) None
Schedule 3.15 None
Schedule 3.16 Insurance Policies
Schedule 3.17 None
Schedule 3.19 Permits and Licenses
Schedule 3.21 None
Schedule 3.24 None
Schedule 3.27 None
Schedule 3.28 Customers and Suppliers
Schedule 3.29 None
Schedule 3.30 None
Schedule 3.32 Environmental Matters
Schedule 14.12 Addresses
EXHIBIT C Consulting, Management and Noncompetition Agreement
