BUSINESS AND ASSET PURCHASE AGREEMENT
This BUSINESS AND ASSET PURCHASE AGREEMENT (this "Agreement") is made and
entered into on by and between Roche Diagnostics GmbH, with registered office at
Sandhofer Strasse 116, D-68305 Mannheim ("Seller") and TCPI Holdings, Ltd. c/o
Maples Calder, P.O. Box 309, Ugland House, South Church Street, Georgetown,
Grand Cayman, Cayman Islands ("Buyer").
Whereas, Seller and its Affiliates own a world-wide pregnancy and
ovulation testing business carried on under the EVATEST(R),
EVAPLAN(R), EVENT-TEST(R), DIAGNOSIS(R) and related
trademarks, and
Whereas, Buyer is the manufacturer of the pregnancy and ovulation
testing products using its own patented membrane technology,
which products are used by Seller and Seller's Affiliates for
their pregnancy and ovulation testing business,
Whereas, Buyer or Buyers Affiliates are interested in purchasing such
pregnancy and ovulation testing business for the OTC market
from Seller and/or Seller's Affiliates and shall keep Seller
and its Affiliates harmless against any and all past and
future patent infringement actions directed against pregnancy
and ovulation testing products that have been supplied by
Buyer to Seller and Seller's Affiliates;
Whereas Seller and Buyer hereby enter into this Agreement to give a
framework for the transfer for the global trademark rights
EVATEST(R), EVAPLAN(R), EVENT(R), DIAGNOSIS(R) and related
trademarks as registered in Italy, Uruguay and Argentina and
for the transfer of the business position of Seller and
Seller's Affiliates in Germany, Switzerland, Italy, Spain,
Uruguay and Argentina and for the transfer of the local sales
organization in Argentina, as respectively provided for in
separate local Asset Purchase Agreements.
Now, therefore, in consideration of the foregoing and intending to be legally
bound, the parties hereto agree as follows:
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1 SCOPE OF THE AGREEMENT
1.1 The scope of this Agreement is on the one hand, to provide Buyer with
security of compliance of Seller's Affiliates with the terms and
conditions of the transfer of trademarks, the business position and the
Argentine marketing and sales organization as provided hereunder, and,
on the other hand, to provide Seller with security about Buyer's and
Buyer's Affiliate's compliance with all terms and conditions of the
transfer of trademarks, business position and the Argentine marketing
and sales organization, including but not limited to the transfer of
the Purchase Price to be covered by a bank guarantee and holding Seller
harmless of patent infringement actions by third parties and related to
Product.
1.2 Seller and Buyer agree to enter, or to cause their respective
Affiliates to enter, into local Asset Purchase Agreements in order to
consummate the obligations contained in this Agreement on a local basis
and to enable a transfer of the actual Assets from their actual owners
to Buyer or Buyer's respective Affiliate.
2 DEFINITIONS
2.1 "Accounts" means the accounts of the Business for Argentina, Uruguay,
Italy, Switzerland, Germany and Spain.
2.2 "Affiliate" of a party means any corporation or other business entity
controlled by, controlling or under common control with, such party.
For this purpose "control" shall mean direct or indirect beneficial
ownership of more than fifty percent (50%) of the voting or income
interest in such corporation or other business entity; provided,
however, Genentech, Inc. and its subsidiaries shall not be considered
an Affiliate of Seller.
2.3 "Agreed Form" means in the form of the local Asset Purchase Agreements
as agreed between the parties and attached in the Exhibits II - VII.
The parties agree, that Seller shall have the right to amend the Agreed
Form after signature limited to the extent necessary to make the local
Asset Purchase Agreements compliant with this Agreement.
2.4 "Assets" has the meaning ascribed to such term in Article 3.
2.5 "Brand Knowledge and Intellectual Property" means all copyright, rights
in the nature of the or related to copyright and design rights to the
extent owned by and available to Seller within the Territory in:
a) the artwork, origination and/or designs appearing on the cans and
packs used to package the Products;
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b) historical advertising for the Products (and any previous products
supplied under the Trademarks) as still available and transferable
without incurring extra costs;
c) market and brand research uniquely associated with EVATEST(R),
EVAPLAN(R) and related trademarks that has been carried out or
commissioned by or on behalf of the Business in the last
twenty-four months prior to Closing, as still available and
transferable without further costs.
2.6 "Business" means the business of buying, marketing and selling the
Products carried on by Seller and its Affiliates using the Trademarks
and the other Assets as prior to and at the date of the Closing in the
Main Territories.
2.7 "Closing" means the relevant Local Closing.
2.8 "Customer Lists" means the customer lists of the Seller and its
Affiliates related to the Business.
2.9 "Disclosure Schedule" (Exhibit I) means the disclosure schedule
delivered as of the date hereof to Buyer by Seller in connection with
this Agreement. Information in the Disclosure Schedule shall be deemed
to be disclosed as to all relevant sections of this Agreement and the
local Asset Purchase Agreements.
2.10 "Event Marks" means trademarks and tradenames incorporating the word
Event (Such as EVENT TEST, EVENT RAPID etc), with the exception of
EVENT STICK.
2.11 "Goodwill" means the goodwill of Seller and its Affiliates relating to
the Business, including Marketing and Promotional Documents as
hereinafter defined, Brand Knowledge and Intellectual Property as well
as the Customer Lists, together with the exclusive right for the Buyer
to represent itself as carrying on the Business in succession to Seller
and its Affiliates.
2.12 "Inventory" means remaining stock of Products at Seller's or Seller's
Affiliate's Location at Closing.
2.13 "Asset Purchase Agreements" means the asset purchase agreements to be
concluded on a local basis for transferring the assets held or owned by
a Sellers Affiliate and attached hereto as Exhibits II - VII.
2.14 "Local Closing" means the closing of the transaction contemplated
herein in the Main Territories.
2.15 "Main Territories" means Argentina, Uruguay, Italy, Spain, Germany and
Switzerland.
2.16 "Marketing and Promotional Documents" shall mean advertising, marketing
and promotional plans and other marketing material that are exclusively
used with the Trademarks in the Main Territories and owned by Seller
and its Affiliates.
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2.17 "Products" means all products sold under the Trademarks and under the
EVENT STICK tradename in the OTC channel.
2.18 "Product Intellectual Property" means the intellectual property rights
which vest in or are licensed to the Seller which relate solely to the
production and manufacture of the Products.
2.19 "Product Registrations" means the licenses and authorizations issued by
the relevant authority within each country in the Main Territories
enabling the sale of the Products in the Main Territories.
2.20 "Purchase Price" means such term as used in Article 4.
2.21 "Seller's Marks" means the names and trade-signs of Seller or any of
its Affiliates appearing on the packaging or promotional material of
the Products.
2.22 "Territory" means all countries where Trademarks are registered as set
forth in Exhibit VIII.
2.23 "Trademarks" shall mean all trademarks owned by Seller and/or its
Affiliates and listed in Exhibit VIII of this Agreement.
2.25 "Trademark Assignments" means the assignments of the Trademarks in the
form required by the appropriate local jurisdiction.
2.26 In this Agreement:
2.26.1 The article and section headings are included for convenience only and
shall not affect the construction of this Agreement.
2.26.2 Words denoting the singular shall include the plural and vice-versa.
2.26.3 Words denoting any gender shall include a reference to each other gender.
3 ASSETS BEING SOLD
Subject to the terms and conditions of this Agreement, at Closing,
Seller shall sell or, as the case may be, shall cause certain
Affiliates of Seller to sell to Buyer or Buyer's Affiliates all of
Sellers and its Affiliate's assets and rights relating to the Business
in the Territory with full and beneficial title, i.e. all of Seller and
its Affiliates rights, title, and interest in the assets listed in this
Agreement (collectively the "Assets") and Buyer or Buyer's Affiliates
shall
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assume all rights, title and interest of Seller in the Assets and all
obligations and responsibilities associated therewith as stated in this
Agreement.
In order to consummate the transaction contemplated herein, the parties
to this Agreement shall cause their respective Affiliates to enter into
local Asset Purchase Agreements in Argentina, Uruguay, Italy, Germany,
Spain and Switzerland. In all other countries, where Inventory is sold
to the Buyer or Buyer's Affiliates, the parties shall cause their
Affiliates to transfer such local Inventory based on a bill of sale.
Assets include:
3.1 Trademarks as defined.
3.2 Tradename License. In addition, Seller shall cause its Spanish
Affiliate to grant to Buyer or Buyer's Affiliate the perpetual,
exclusive, fully paid-up, irrevocable and transferable (subject to
consent of Seller, such consent to transfer not to be unreasonably
withheld) license to use the tradename EVENT STICK in the territory of
Spain for OTC products only (The "Tradename License"). All other uses
or applications of such said tradename shall remain with the Affiliate
of Seller.
3.3 Goodwill in respect of Affiliates with the exception of the Argentine
Affiliate shall include:
3.3.1 Business, Marketing and Promotional Documents ("Business Binder")
(Exhibit IX) meaning business, marketing and promotional documents
owned by Seller and/or its respective Affiliate and available at
reasonable efforts as of the date of Local Closing, containing:
a. List of Brands and Products sold with ID number and short
Product Description;
b. Sales history since 1997 and until date of Local Closing;
c. Pricing with regard to the different partners in the
distribution set up;
d. Market size and share position;
e. History of quality report and complaint rate;
f. Short description about marketing and sales plan;
g. Marketing tools;
h. Pro forma profitability statement containing such material as
available from the respective Affiliate;
i. Business Results of 1999.
The respective "Business Binder" will be handed over by Seller to Buyer
after Local Closing.
3.3.2 Brand Knowledge and Intellectual Property (Exhibit IX) shall mean all
copyright, rights in the nature of or related to copyright and design
rights
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with regard to Trademarks, to the extent owned by and available to
Seller or its Affiliate in the respective territory, including:
a. Artwork, origination and/or designs appearing on cans, vials and
packs used for packaging of Product except for the name and logo
of Seller and Sellers Affiliates;
b. Historical advertising for Products as available without
incurring extra costs;
c. Market and brand research carried out or commissioned by or on
behalf of the business during the last twenty-four months, as
available without incurring extra costs.
3.3.3 Customer Lists (Exhibit IX) meaning the list of Seller's and/or its
respective Affiliates customers of Products in the respective
Territory, as issued by the respective Affiliate.
3.3.4 Inventory meaning remaining stock of Products, to the extent Buyer
wishes to acquire, relabel and sell or otherwise dispose of such
products.
3.4 Goodwill of the Argentine Affiliate shall include:
Business and Marketing and Sales Organization of Seller's Affiliate in
Argentina. Under such terms and conditions as set forth in detail in
the local Asset Purchase Agreement for Argentina that is supplementary
to this Agreement.
3.5 Inventory. Inventory shall consist of intermediate or finished goods
owned by Seller's Affiliates in the Territory as listed in the
respective local Asset Purchase Agreements, subject to Section 4.4.
3.6 Excluded Assets. For the avoidance of doubt, the parties to this
Agreement agree that purchased assets do not include any additional
(not listed above) know-how, intellectual property rights of any kind
or license to third party intellectual property rights nor include name
and logo of Seller and/or Sellers Affiliates.
3.7 Asset Purchase Agreement. The Asset Purchase Agreements shall be in the
Agreed Form (Exhibit II - VII). In the event of a conflict between the
terms and conditions of this Agreement on the one hand, and the terms
and conditions of any Asset Purchase Agreement, or any other document
of asset conveyance or liability transfer, on the other hand, the terms
and conditions of this Agreement shall prevail.
3.8. Allocation of Assets. Assets shall be transferred to such corporation
or legal entity as Buyer determines in writing - costs arising in
connection with a transfer of Assets to a corporation or entity other
than Buyer itself, shall be exclusively borne by Buyer.
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4 PURCHASE PRICE
4.1 Purchase Price for Trademarks and Goodwill. The purchase price for the
Assets set forth in this Agreement and the local Asset Purchase
Agreements, with the exception of Inventory, is USD 7,000,000 (seven
million US Dollars): (the "Purchase Price"). Buyer shall pay to Seller
a first down-payment of USD 500,000 (five hundred thousand US Dollars)
in cash or wire transfer at signature of this Agreement, a second
down-payment of USD 3,000,000 (three million US Dollars) when Buyer's
registration Statement is declared effective by the United States of
America Securities and Exchange Commission (SEC) but not later than one
hundred and twenty (120) days after signature of this Agreement and a
third finalpayment of USD 3,500,000 (three million and five-hundred
thousand US Dollars) in installments, each installment to be paid and
to be available to RDG on RDG`s account prior to Closing of each local
Asset Purchase Agreement and the Payment Schedule (Exhibit X), .
RDG's account:
Account No.: 01026320005
Bank: Deutsche Bank Mannheim,
Bank No. (BLZ): 670 700 10
SWIFT: DEUTDESM
4.2 Value Added Tax. In such countries, where Seller and/or Seller's
Affiliates are obliged to pay VAT or Register Tax or equivalent local
tax for the Purchase Price or for a part of the Purchase Price, Buyer
shall reimburse the amount of such VAT or Register Tax or equivalent
local tax to Seller and/or Seller's Affiliates.
4.3 Bank Guarantee. If Buyer fails to pay the second or third down-payment
at the respective due-date, Buyer will, at the respective due-date,
hand over to Legal Department of Seller a perpetual, unrestricted,
irrevocable absolute bank guarantee, payable on first demand, covering
the outstanding amount for the second and/or third down-payment, which
is issued by a major US-American bank that is sufficiently acceptable
to Seller. Seller will return said bank guarantee to Buyer when the
Purchase Price for Trademarks and Goodwill has been paid in full.
4.4 Price for Inventory. Subject to a further agreement between Buyer or
Buyer's Affiliates and the respective owner, for the transfer of
Inventory, the owner shall transfer to Buyer or Buyer's Affiliate and
Buyer or Buyer's Affiliates shall pay to Seller the Inventory available
at the same price as paid by Seller to Buyer at the purchase of
Products:
The price for the Inventory shall be paid within four weeks after
Closing and in addition to the Purchase Price.
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4.5 Allocation of Purchase Price. Allocation of Purchase Price to Sellers'
Affiliates shall be as set out in the Allocation Schedule (Exhibit X)
and shall take place immediately after Seller has received the
respective installment from Buyer.
5 REPRESENTATIONS AND WARRANTIES OF SELLER
5.1 Organization. Seller is a corporation duly organized, validly existing
and in good standing under the laws of Germany, with full corporate
power and authority to consummate the transactions contemplated hereby.
5.2 Corporate Authority. The execution, delivery and performance of this
Agreement by Seller and its Affiliates and the consummation and
performance of the transactions contemplated hereby, have been duly and
validly authorized by all necessary corporate proceedings, and this
Agreement has been duly authorized, executed, and delivered by Seller
and its Affiliates and, assuming the enforceability against Buyer,
constitutes the legal, valid and binding obligation of Seller,
enforceable in accordance with its terms.
5.3 No Violation or Conflict. The execution, delivery and performance of
this Agreement by Seller to the best of Seller's knowledge (a) do not
and will not conflict with, violate or constitute or result in a
default under any law, judgement, order, decree, the articles of
incorporation or bylaws of Seller or any contract or agreement to which
Seller is a party or by which Seller is bound or (b) will not result in
the creation or imposition of any major lien, charge, mortgage, claim,
pledge, security interest, restriction or encumbrance of any kind on,
or liability with respect to, the Assets except as otherwise provided
herein or otherwise disclosed on the Disclosure Schedule.
5.4 No Government Restrictions. Except as set forth in the Disclosure
Schedule to the best of Seller's knowledge, no consent, approval, order
or authorization of, or registration, declaration or filing with, any
governmental agency is required to be obtained or made by or with
respect to Seller in connection with the execution, delivery and
performance of this Agreement by Seller.
5.5 Title to Assets. Except as set forth in the Disclosure Schedule, Seller
or one of its Affiliates has good and marketable title to all the
Assets and will, subject to other provisions of this Agreement and the
Disclosure Schedule, convey good and marketable title at Closing, free
and clear of any and all liens, encumbrances, charges, claims,
restrictions, pledges, security interests, or impositions of any kind
(including those of secured parties). Either Seller or one of its
Affiliates is the beneficial owner of all the Assets. None of the
Assets is leased, rented, licensed, or otherwise not wholly owned by
either Seller or one of its Affiliates, except possible reservations of
ownership by Buyer.
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5.6 Violations of Law. Except as set forth otherwise in this Agreement and
the Disclosure Schedule, the operation of the Business by Seller and/or
its Affiliates (i) does not, to the best of Seller's knowledge, violate
or conflict with any law, governmental specification, authorization, or
requirement, or any decree, judgement, order, or similar restriction in
any material respect, and (ii) has not been the subject of an
investigation or inquiry by any governmental agency or authority
regarding violations or alleged violations, or found by any such agency
or authority to be in violation, of any law, and, to the best of the
Seller's knowledge, no such investigation or enquiry is current,
pending or expected.
5.7 Litigation. Except as set forth in the Disclosure Schedule or otherwise
in this Agreement, neither the Business nor the Assets are the subject
of (i) any outstanding judgement, order, writ, injunction or decree of
any arbitrator or administrative or governmental authority or agency,
limiting, restricting or affecting the Assets or the Business, (ii) any
pending or seriously threatened claim, suit, proceeding, charge,
inquiry, investigation or action of any kind, and (iii) any court suits
filed with respect to the Business or the Assets within twenty-four
months prior to closing. Subject to other provisions of this Agreement
to the best of Seller's knowledge, there are no claims, actions, suits,
proceedings or investigations pending or threatened by or against
Seller or its Affiliates with respect to the transactions contemplated
hereby that would have a Material Adverse Effect. To the best of the
Seller's knowledge, there is no fact or circumstance likely to give
rise to any litigation, arbitration, administrative or criminal
proceedings in respect of the Assets or the Business which would have a
Material Adverse Effect. To the avoidance of doubt, both parties are
aware of the pending patent conflict between Unilever N.V. (plaintiff)
v. Hestia Pharma GmbH, an Affiliate of Seller, and its officers
(defendants), where Unilever claims that production, marketing, sale,
advertisement and other use of Products infringes their patents and
intellectual property rights, and Hestia Pharma GmbH claims that no
such patent infringement exists. Furthermore, both parties are aware of
the proceedings before the Court of Milan in Hestia Pharma GmbH
(applicant) v. Unilever N.V. (defendant) for the grant of a declaratory
judgement of non-infringement and of the proceedings before the
Bayerisches Verwaltungsgericht Munchen (File No. M29 K00 1807) between
Unilever N.V. (plaintiff) v. Roche Diagnostics GmbH and TCPI Inc.
Florida (defendants).
5.8 Agency. Neither the Seller nor its Affiliates has given any power of
attorney or other authority (express, implied or ostensible) to run the
Business or to dispose of the Business, which is still outstanding or
effective to any person.
5.9 Duties Etc. All customs duties and VAT payable to any revenue
authorities upon the importation of any of the Assets and Inventory and
all excise duties payable to any revenue authorities in respect of any
of the Assets and Inventory that have become due prior to closing, have
been paid in full and none of the Assets or any of the Inventory is
liable to confiscation or forfeiture (whether by virtue of non payment
or
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underpayment of any tax or duty or by virtue of non compliance with any
legislation or regulation relating to any tax or duty or otherwise
howsoever.
5.10 Trademarks. Unless otherwise set forth in the Disclosure Schedule or
otherwise in this Agreement, Seller, to the best of its knowledge,
makes the following representations and warranties with respect to the
Trademarks:
5.10.1 The Trademark List contains complete and accurate details of (i) all
unregistered trademarks which are or are likely to be material to the
Business, (ii) all trademark registrations and (iii) pending
applications used or intended to be used in connection with the
Business. The parties agree that the Trademark List as counter-checked
by Vossius & Partner, Patentanwalte, Siebertstra(beta)e 4, 81675
Munchen as independent consultant of Seller, represents complete and
accurate details and is acceptable to both parties.
5.10.2 None of the trademarks contained in the Trademark List is licensed to a
third party.
5.10.3 To the best of Seller's knowledge, all registered Trademarks as listed
in the Trademark List are in full force.
5.10.4 To the best of its knowledge, Seller is not aware of any actual
unauthorized use, misuse or infringement of registered Trademarks
listed in the Trademark List.
5.10.5 To the best of Seller's knowledge, Trademarks listed in the Trademark
List are free of any lien/charge at the date of closing.
5.11 Product Liability. No proceedings for product liability or otherwise
have been commenced against the Seller in respect of the Products
during the past two years.
5.12 Miscellaneous.
5.12.1 The Seller is not aware of any major customer or group of customers
which intends materially to reduce or cease its orders for the Products
following Closing.
5.12.2 All necessary licenses, consents, permits, agreements, arrangements,
and authorities (public and private) have been obtained to enable the
Seller and its Affiliates to carry on the Business in the Territory
except of what has been set out in the Disclosure Schedule.
5.12.3 To the best of Seller's knowledge, neither Seller nor any of its
Affiliates in the Territory has received, at any time within the last
two years prior to signature of this Agreement, complaints from any
regulatory body, customers or other person concerning any marketing or
advertising activity.
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5.12.4 To the best of Seller's knowledge, there are no existing contracts
which relate to or are necessary for the carrying on of the business in
the Territory, except as set out in the Disclosure Schedule.
5.12.5 The accounts for each country of the Territory are accurate and
complete in all material aspects, reflect only actual bona fide
transactions, and are consistent with the accounting records of Seller.
6 REPRESENTATIONS AND WARRANTIES OF BUYER
6.1 Organization. Buyer is a corporation duly organized, validly existing
and in good standing under the laws of the Cayman Islands, has all
corporate powers and material governmental licenses, authorizations,
permits, consents and approvals required to carry on its business as
currently conducted and has full corporate power and authority to
consummate the transactions contemplated hereby.
6.2 Authority. The execution, delivery and performance of this Agreement by
Buyer and its Affiliates have been duly and validly authorized by all
necessary corporate proceedings, and this Agreement has been duly
authorized, executed, and delivered by Buyer and its Affiliates and,
assuming the enforceability against Seller, constitutes the legal,
valid and binding obligation of Buyer, enforceable in accordance with
its terms.
6.3 Liquidity. Buyer, at the date of signature of this Agreement, is able
to fulfil all of its obligations, covenants etc. according to this
Agreement and the local Asset Purchase Agreements.
6.4 No Violation or Conflict. The execution, delivery and performance of
this Agreement by Buyer do not and will not conflict with, violate or
constitute or result in a default under any law, judgement, order,
decree, the articles of incorporation or bylaws of Buyer, or any
contract or agreement to which Buyer is a party or by which Buyer is
bound.
6.5 No Government Restrictions. Except as set forth in Disclosure Schedule
no consent, approval, order or authorization of, or registration,
declaration or filing with, any governmental agency is required to be
obtained or made by or with respect to Buyer in connection with the
execution, delivery and performance of this Agreement by Buyer.
6.6 Litigation. There are no claims, actions, suits, proceedings or
investigations pending or, to the best of Buyer's knowledge, threatened
by or against Buyer or Buyer's Affiliates with respect to the
transactions contemplated hereby, at law or in equity or
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before or by any federal, state, municipal or other governmental
department, commission, board, agency, instrumentality or authority,
with the exception of the pending patent conflict regarding Products.
6.7 No Patent Infringement of Products. Buyer represents and warrants as
manufacturer of Products that the distribution marketing and sale of
Products by Seller and Affiliates and their respective distributors did
not and do not, at any time, infringe third party patent rights.
Furthermore, Buyer's technology used for manufacture of Products is
different and distinct from third party patent rights in both
methodology and performance.
7 SELLER'S COVENANTS - TRANSITIONAL ARRANGEMENTS
7.1 Maintenance of Assets / Conduct of Business. Seller agrees that from
the date hereof until the date of Closing, except as specifically
disclosed in the Disclosure Schedule or unless otherwise consented to
by Buyer in writing, Seller shall ensure, subject to applicable laws
and regulations, that its Affiliates shall preserve the Assets and
conduct the Business in accordance with the terms of this section. From
the signing of this Agreement until Closing, Seller undertakes as
follows:
7.1.1 the Business will continue to be carried on in the same manner as it is
presently carried on, including that the goodwill of, and relationship
with, all major customers of the Business will be retained and
preserved;
7.1.2 except as set forth in this Agreement or disclosed on the Disclosure
Schedule to maintain the Assets in good status and condition and not
sell or dispose of any of the Assets except that Seller may sell any
remaining Inventory if possible.
7.1.3 not to make or institute any unusual or novel methods of purchase,
sale, management, or other business practice in the conduct of the
business inconsistent with past practices. It is however understood
that Seller or Sellers Affiliates will continue business practise, with
reasonable efforts on the same level as performed in the last twelve
(12) months prior to Closing.
7.1.4 the Seller shall immediately disclose to the Buyer in writing any
matter or thing with Material Adverse Effect on the business which
arises or becomes known to it before Closing which is or might
reasonably be expected to be a breach of any of the representations or
warranties set forth in this Agreement;
7.2 Compliance with Laws. Except as otherwise disclosed on the Disclosure
Schedule, Seller shall comply with all laws and orders of any court or
federal, state, local or other governmental entity applicable to the
Assets in the Territory except where such non-compliance will not have
a Material Adverse Effect.
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7.3 The Seller undertakes and agrees that for the period of 12 (twelve)
months following Closing:
7.3.1 it shall promptly forward to the Buyer all orders for Products and all
other communications in relation to the Business received by it or its
Affiliates; and
7.3.2 neither it nor any of its Affiliates shall make any adverse statement
in relation to the Products or the Business.
7.4 Accuracy of Information furnished. All information furnished to Buyer
by Seller herein, including the sales and financial information
contained in a certain "Confidentiality Argentina" report dated 14th
April, 2000 and bearing the initials of Jack Aronowitz and Jacques
Kourkgy or in any exhibit or schedule hereto is true and correct in all
material respects. During a period of two (2) years after signature of
this Agreement, Seller agrees to inform Buyer immediately of additional
material respects of information furnished to Buyer herein, that come
to Seller's knowledge.
8 TRADEMARK ASSIGNMENTS
8.1 The Seller and the Buyer acknowledge that the Trademarks set out in
Exhibit VIII are subject to the trademark laws (including, without
limitation, as to assignment) of the jurisdiction in which each
Trademark is registered and that accordingly the Trademark Assignments
shall be subject to such amendments or variations thereto as may be
required to comply with the law of the relevant jurisdiction.
8.2 The Buyer undertakes to the Seller that it shall be responsible for all
renewal and other fees relating to Trademarks which are forwarded to
the Seller after Closing and the Seller acknowledges that it is
responsible for all renewal and other fees relating to the Trademarks
for the period up to Closing.
8.3 The Seller agrees that it shall, and shall assure that its Affiliates
shall defend the "Event Stick" tradename in Spain in accordance with
the Terms of the Tradename License.
8.4 The Buyer undertakes to register all relevant Trademarks in its own or
its Affiliates' name and at its own expenses without undue delay and
not later than twelve months after closing.
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9 RESTRICTIONS ON SELLER
9.1 Following Closing, with the exception to the EVENT Marks, the Seller
undertakes for itself not to, and shall procure that none of its
Affiliates will:
9.1.1 import into the Territory, or produce, manufacture, authorize or
license the production or manufacture in the Territory of any products
carrying any mark identical or similar to any of the Trademarks;
9.1.2 actively promote any products under EVENT STICK in Spain in the OTC
channel.
9.2 Following signature of this Agreement and for a period of five years
thereafter, the Seller undertakes for itself not to, and shall procure
that none of its Affiliates will open up a new business or register a
new trademark for pregnancy and ovulation testing in the OTC market
throughout the Territory or acquire any company which competes in the
whole or substantial parts of the Territory with the Business. If
Seller and/or Affiliates acquire a company, the business of which
partly competes with the Business, such part of the business shall be
sold without undue delay and at the latest within twelve months or be
terminated immediately. Seller agrees to notify Buyer immediately of
any such acquisition, during the five years period.
9.3 Retained Liability. The Seller agrees with the Buyer that it or its
Affiliates will duly and properly perform, assume and pay and discharge
when due, and indemnify the Buyer (and the Buyer's Affiliates) against
all past present and future obligations of the Seller and its
Affiliates in respect of the Business which arise from or relate to the
period prior to Closing, except for such obligations imposed on Seller
in relation to any and all infringement of third party patent rights by
production, marketing, sale, advertisement or other use of Products,
and/or in relation to any of Buyer's or Buyer's Affiliate's activities
with regard to the Business during the period of registration for
Products prior to Closing.
<PAGE>
10 BUYER'S COVENANTS
10.1 Approvals and Registrations. Following signature of this Agreement,
Buyer shall without undue delay and, except as otherwise set forth
herein, at its own expense, fulfill the following tasks in such
countries of the Territory, where legally required for a complete
consummation of the transfer of Trademarks, Business positions,
marketing and sales organizations etc:
- set up its own corporation or other legal entity in the respective
Territory;
- register a warehouse in conformity with all applicable laws and
registrations;
- appoint a technical director;
- obtain governmental approvals and registrations from the competent
regulatory authorities
10.2 References to Seller. Subject to Article 10 any reference by Buyer to
Seller or its Affiliates or any use of the trademarks, tradenames, or
logos of Seller or its Affiliates which are not sold by this Agreement
or a local Asset Purchase Agreement in connection with the Product
after Closing must be approved by Seller in writing prior to such use.
10.3 Patent Infringement Actions.
10.3.1 Buyer agrees to hold Seller and Seller's Affiliates and their
respective officers harmless against all damages, back royalties,
costs, attorneys' fees and the like, arising from and/or related to any
and all patent infringement actions, whether already instituted,
pending but not settled before signature of this Agreement or
instituted thereafter and related to Seller's or Seller's Affiliate's
use, sale, distribution, marketing, advertising etc. of Products prior
to Closing. This shall not apply in so far as Seller or Seller's
Affiliates and their respective officers settle such conflict
("Vergleich") without prior written consent of Buyer.
10.3.2 Following signature of this Agreement, Seller and Seller's Affiliates
shall, to the extent legally permissible, enable Buyer on Buyer's
request to participate on the side of the defendant as a party
(interpleader by counterclaim) in the already pending patent
infringement action by Unilever N.V. (plaintiff) v. Hestia Pharma GmbH
and its officers (defendants); in the proceedings before the Court of
Milan in Hestia Pharma GmbH (applicant) v. Unilever N.V. (defendant)
for the grant of a declaratory judgement of non-infringement
(intervention in support of applicant), and in the proceedings before
the Bayerisches Verwaltungsgericht Munchen (File No. M29 K00 1807)
between Unilever N.V. (plaintiff) v. Roche Diagnostics GmbH and TCPI
Inc. Florida (defendants). To the avoidance of doubt, Buyer himself
shall not bring any action or institute any legal proceeding against
Seller or Seller's Affiliates and their respective officers relating to
Seller's and/or Seller's Affiliate's use, sale, distribution,
marketing, advertising etc. of products.
<PAGE>
10.4 Protection of Seller's Reputation. Buyer shall use all reasonable
efforts to protect and hold harmless, and refrain from any action
likely to endanger Seller's name, reputation, past and future business
and trademark use, limited to the Business for a period of at least
five years after Closing.
10.5 Liquidity. Buyer agrees and undertakes to refrain from any and all
action that could endanger, and to take all possible steps and actions
to maintain, its sufficient liquidity to comply with all of its
financial obligations under this Agreement and each and every local
Asset Purchase Agreement, for a period of five years after the
respective Closing date.
10.6 Completion of Due Diligence. Without prejudice to any of the
representations and warranties given hereunder, Buyer herewith confirms
that it has completed all of its due diligence of the Assets.
11 LICENCE TO SELLER
Grant. The Buyer, on behalf of its Affiliates where appropriate, now
grants to the Seller a non-exclusive license to use the Trademarks for
the sole purpose of complying with and giving effect to the
Transitional Arrangements and continuing to sell the Inventory.
12 COVENANTS BY BUYER AND SELLER
12.1 Access to Information. Buyer and Seller will, upon reasonable prior
notice, make available to the other, to the extent reasonably required
for the purpose of assisting Seller or Buyer in obtaining governmental
approvals and preparation of tax returns relating to the Assets and
prosecuting or defending or preparing for the prosecution or defence of
any action, suit, claim, complaint, proceeding or investigation at any
time brought by or pending against Seller or Buyer relating to the
Assets, other than in the case of litigation between the parties
hereto, such information or records (or copies thereof) in their
possession after Closing.
12.2 Press Releases. Any announcement, publication or press release
referring to this Agreement, the local Asset Purchase Agreements and
all transactions related thereto (Announcements) require prior written
consent by both parties, which consent shall not be unreasonably
withheld. Purchase Price and other confidential information shall not
be disclosed at all, except as required by law or regulation. The
parties shall agree upon the wording and timing of any such
announcement.
12.3 Customer Information. Seller and Buyer shall jointly agree upon the
extent, form and text of the Announcement to the clients in the
Territory on a country-by-country basis and to the extent as required
by law.
<PAGE>
12.4 Confidentiality.
12.4.1 Subject to Section 12.4.2 each party shall, and procure that its
Affiliates shall, treat as strictly confidential and not use any
information received or obtained as a result of entering into or
performing this Agreement (or any other agreement entered into under or
pursuant to this Agreement) which relates to:
a) the provisions of this Agreement and any other document referred to
herein;
b) the negotiations relating to this Agreement and any other document
referred to herein;
c) any other party and the members of its respective group (as at the
date of this Agreement) and the business or businesses carried on by
each of them;
d) trading terms, discounts or special arrangements with individual
customers of each of the parties.
12.4.2 The provisions of Section 12.4.1 above shall not prohibit disclosure or
use if and to the extent:
a) required by law or for the purpose of any judicial proceedings
arising out of this Agreement or any other agreement entered into
under or pursuant to this Agreement;
b) required by any recognized investment exchange or any other
competent regulatory authority;
c) required to vest the full benefit of this Agreement in any party;
d) made to or used by the professional advisers, auditors and bankers
of either party on terms that such professional advisers, auditors
and bankers undertake to comply with the provisions of Section
12.4.1 above in respect of such information as if they were a party
to this Agreement;
e) the information has become generally available through no fault of
that party; or
f) such disclosure is permitted under Section 12.2 and 12.3.
12.5 Further Assurances. The parties shall use all reasonable efforts to
implement the provisions of this Agreement and for such purpose, at the
request of the other party, at or after closing, shall, without further
consideration, execute and deliver, or cause to be executed and
delivered, to the other party such consents and other instruments in
addition to those required by this Agreement, in form and substance
satisfactory to the other party, as the other party may reasonably deem
necessary or desirable to implement any provision of this Agreement.
<PAGE>
13 CONDITIONS PRECEDENT TO CLOSING
13.1 Conditions to Obligations of Buyer and Seller. The obligations of Buyer
and Seller to complete the transactions contemplated hereby are subject
to the satisfaction on or prior to the date of Closing of the following
conditions:
13.1.1 No provision of any applicable law or regulation and no judgement,
injunction, order or decree shall prohibit the consummation of the
Closing.
13.1.2 Buyer or Buyer's Affiliates shall notify competent anti-trust or
competition authorities about the transfer of the Business in such
countries, where legally required. Buyer or Buyer's Affiliates shall
bear the entire costs of notification and accordingly reimburse
external legal costs of Seller connected therewith.
14 THE CLOSING
14.1 The Closing. Closing of the transactions contemplated by this Agreement
shall take place on a local basis (the "Local Closing") as follows or
on the date of the respective governmental approval following
notification (according to section 13.1.2):
14.1.1 in Argentina after registration of Product by Buyer or Buyer's
Affiliate or after transfer of Seller's or Seller's Affiliate's
registration of Product to Buyer or Buyer's Affiliate, as the case may
be; at the latest on December 31, 2001.
14.1.2 in Uruguay on after registration of Product by Buyer or Buyer's
Affiliate or after transfer of Seller's or Seller's Affiliate's
registration of Product to Buyer or Buyer's Affiliate, as the case may
be; at the latest on December 31, 2001.
14.1.3 in Germany on August 1, 2000;
14.1.4 in Switzerland on August 1, 2000;
14.1.5 in Spain on August 1, 2000;
14.1.6 in Italy September 1, 2000.
14.1.7 At each Local Closing, the Buyer shall:
a) Pay by wire transfer to Seller the amount set forth in Exhibit X and
in the respective local Asset Purchase Agreement.
<PAGE>
b) Deliver duly executed counterparts of:
i. the Disclosure Schedule;
ii. the Tradename License for Spain exclusively at Closing in
Spain; and
iii. the local Asset Purchase Agreements.
c) Deliver to or procure deliveries of:
i. a copy of minutes of a meeting of the directors of Buyer in
the Agreed Form approving and authorizing the execution by
Buyer of this Agreement and of any other documentation
referred to in this Agreement that may be necessary or
desirable arising out of or in connection with this Agreement
or the transactions contemplated thereby; and
ii. a copy of the power of attorney or board resolution appointing
the relevant signatory or signatories to sign this Agreement
and any such other documentation on its behalf.
14.1.8 On each Local Closing the Seller or the respective Affiliate shall
deliver to or procure delivery to the Buyer of:
a) such certificates of registration and any certificates of
amendment in respect of the Trademarks of the Seller or any
Affiliate of the Seller (as contained in Trademark Binder I
(Exhibit IX);
b) copies of all health-relevant files related to the Business as
available without additional costs (as contained in Trademark
Binder I (Exhibit IX);
c) renewal certificates or evidence of renewal as appropriated
for any of the Trademarks (as contained in Trademark Binder I
(Exhibit IX);
d) copies of correspondence files relating to pending
applications and current opposition and infringement
proceedings in relation to the Trademarks, if any (as
contained in Trademark Binder I (Exhibit IX);
e) physical possession of all of the Assets;
f) the duly executed Disclosure Schedule (Exhibit I);
g) copies of Sellers or Seller's Affiliates Product registration
files, as available without additional costs (as contained in
Trademark Binders I and II (Exhibit IX);
h) such assignments or other documents as necessary for Buyer to
vest in Buyer full and beneficial title in the Assets listed
in the Agreement.
<PAGE>
14.1.9 The parties shall agree on a date for the transfer of the Inventory,
which shall not be more than five working days after relevant Local
Closing. The Inventory shall be shipped CPT (Incoterms 2000) to the
indicated designated Buyer.
14.2 Effects of Closing. Upon Closing the ownership of the Assets as well as
the full responsibility for the use of the Assets and the conduct of
the Business comprising the use of the Assets shall pass from Seller or
Seller's Affiliate to Buyer or Buyer's Affiliate. Seller shall remain
exclusively responsible for the conduct of the Business prior to
Closing (including any consequences therefrom which may appear after
the Closing). Buyer shall be exclusively responsible for the conduct of
the Business from Closing. Buyer acknowledges that, as per the Closing,
Buyer shall be responsible for proper insurance of the product
liability and other risks relating to the Business. Closing shall not
prejudice the Buyer and shall not constitute a waiver in relation to
any claim it may have for damages caused by reason of a breach of any
of the covenants contained in Article 6. The Closing shall further have
the other effects provided for in this Agreement.
15 TERMINATION
15.1 Termination. This Agreement or the relevant local Asset Purchase
Agreement and the transactions contemplated hereby may be terminated at
any time prior to the date of Closing:
15.1.1 By the mutual written consent of Seller and Buyer;
15.1.2 By either Seller or Buyer if Closing shall not have occurred within
nine (9) months after the Closing Date as scheduled in Section 14.1.
15.1.3 By Seller, if Buyer culpably fails to either pay the second or third
down-payment of the Purchase Price on the respective due date, or
provide RDG on the due date with a perpetual, unrestricted,
irrevocable, absolute bank guarantee, payable on first demand, covering
the outstanding amount, which is issued by a major US-American bank
that is sufficiently acceptable to Seller according to Section 4.3. The
parties agree that in case of a termination by Seller under this
Section 15.1.3, the first down-payment of USD 500,000 (five-hundred
thousand US Dollars) shall remain with Seller and shall not be paid
back. Accordingly, Buyer hereby waives each and every claim for
compensation, damages etc. related to a remuneration of the first
down-payment of USD 500,000 (five-hundred thousand US Dollars).
15.1.4 By either Seller or Buyer if consummation of the transactions
contemplated hereby shall violate any non-appealable final order,
decree or judgement of any court or governmental body having competent
jurisdiction; or
<PAGE>
15.1.5 By either Seller or Buyer if there has been a material violation or
breach by the other party of any of the representations, warranties or
covenants contained in this Agreement that has not been waived in
writing, or if there has been a material failure of satisfaction of a
condition to the obligations of the other party that has not been
waived in writing, and such violation, breach, or failure has not been
cured within sixty (60) days of written notice to the other party.
It is understood that after a Local Closing has occurred, the local
Asset Purchase Agreement as well as the part of this Agreement relating
to it may not be terminated.
15.2 Effect of Termination. If this Agreement is terminated pursuant to
Sections 15.1.1 or 15.1.3, all obligations of Seller and Buyer under
this Agreement shall terminate without further liability of Seller or
Buyer except (a) for the obligations of Buyer and Seller under Sections
12.2 (Press Releases), 12.4 (Confidentiality) 16 (Indemnification), 18
(Governing law), 19 (Additional Terms), and (b) that such termination
shall not constitute a waiver by any party of any claim it may have for
damages caused by reason of a breach by the other party of a
representation, warranty, covenant or agreement.
16 INDEMNIFICATION
16.1 Product liability. The Seller shall fully indemnify and keep fully
indemnified the Buyer and its Affiliates against all actions, claims,
proceedings, costs and damages and all legal costs or other expenses
arising therefrom, based on product liability for Products actually
sold by Seller and Seller's Affiliates. The Buyer shall fully indemnify
and keep fully indemnified the Seller and its Affiliates against all
actions, claims, proceedings, costs and damages and all legal costs or
expenses arising therefrom, based on product liability for Products
actually sold by the Buyer.
16.2 Indemnification by Seller. Seller shall indemnify Buyer and its
Affiliates against and agrees to hold Buyer and its Affiliates harmless
from any and all damage, loss, liability, third party claims, and
expense (collectively "Damages") (including without limitation,
reasonable expenses of investigation and attorneys' fees and expenses
in connection with any action, suit, or proceeding brought against
Buyer or its Affiliates) incurred or suffered by Buyer or its
Affiliates arising out of any misrepresentation or breach of a warranty
or covenant made by Seller herein ("Indemnifiable Claims").
16.3 Indemnification by Buyer. Buyer shall indemnify Seller and its
Affiliates against and agrees to hold Seller and its Affiliates
harmless from any and all
<PAGE>
Damages (including without limitation, reasonable expenses of
investigation and attorneys' fees and expenses in connection with any
action, suit or proceeding brought against Seller or its Affiliates)
incurred or suffered by Seller or its Affiliates arising out of any
misrepresentation or breach of a warranty or covenant made by Buyer
herein ("Indemnifiable Claims").
16.4 Limitation of time. Subject to the limitations set forth in this
Agreement, any claims that a party may have arising out of the other
party's breach of its representations and warranties hereunder with the
exception of Seller's claims against Buyer for the Purchase Price
and/or for being held harmless against third parties' claims with
regard to patent conflicts according to sections 5.7, 6.7 and 10.3 (to
which claims said limitation of time shall not apply), shall be
notified to the other party not later than 1 (one) year following
Closing (without affecting either party's right to start court
proceedings thereafter if the notification for the pertaining matter
has been given prior to the expiration of such 1 (one) year). Seller
and Buyer agree to use all reasonable efforts to mitigate any loss or
damage for which they may seek indemnification under this article 16.
16.5 Limitations. With the exception of Seller's claims against Buyer for
the Purchase Price and/or for being held harmless against third
parties' claims with regard to patent conflicts according to sections
5.7, 6.7, and 10.3 (to which claims such limitation shall not apply),
neither party shall be entitled to indemnification hereunder with
respect to any indemnifiable claim arising from any breach of this
Agreement:
a. unless and until the aggregate amount of all such claims, each
claim not being less than USD 10, 000 (ten thousand USD),
exceeds USD 100, 000 (one hundred thousand USD) in which event
the other party's liability shall be for the full amount; or
b. for an aggregate amount exceeding 10 per cent of the Purchase
Price.
c. any claims that a party may have arising out of the other
party's breach of its representations and warranties hereunder
shall be notified to the other party no later than 1 (one)
year following Closing (without affecting either party's right
to start court proceedings thereafter) if the notification for
the pertaining matter has been given prior to the expiration
of such one year period).
16.6 Notice. A party seeking indemnification pursuant to Section 16.2 or
16.3 (an "Indemnified Party") shall give prompt notice to the party
from whom such indemnification is sought (the "Indemnifying Party") of
the assertion of any claim, or the commencement of any action, suit or
proceeding, in respect of which indemnity is or may be sought hereunder
(whether or not the limits set forth in Section 16.5 have been
exceeded) and will give the Indemnifying Party such information with
respect thereto as the Indemnifying Party may reasonably request, but
failure to give such notice shall not relieve the Indemnifying Party of
any liability hereunder.
<PAGE>
16.7 Participation in Defence. The Indemnifying Party may, at its expense,
participate in or assume the defence of any such action, suit or
proceeding involving a third party. In such case the Indemnified Party
shall have the right (but not the duty) to participate in the defence
thereof, and to employ counsel, at its own expense, separate from
counsel employed by the Indemnifying Party in any such action and to
participate in the defence thereof. The Indemnifying Party shall be
liable for the fees and expenses of one firm as counsel (and
appropriate local counsel) employed by the Indemnified Party if the
Indemnifying Party has not assumed the defence thereof. Whether or not
the Indemnifying Party chooses to defend or prosecute any claim
involving a third party, all the parties hereto shall, and shall cause
their respective Affiliates to, co-operate in the defence or
prosecution thereof and shall furnish, or cause to be furnished, such
records, information and testimony, and attend such conferences,
discovery proceedings, hearings, trials and appeals, as may be
reasonably requested in connection therewith.
16.8 Settlements. The Indemnifying Party shall not be liable under this
section for any settlement effected without its consent of any claim,
litigation or proceedings in respect of which indemnity may be sought
hereunder, unless the Indemnifying Party refuses to acknowledge
liability for indemnification under this Article 16 and/or declines to
defend the Indemnified Party in such claim, litigation or proceeding.
Such decision to be notified to the Indemnified Party within 30
(thirty) days.
16.9 All sums payable by the Indemnifying Party to the Indemnified Party
under this Article 16 shall be paid free and clear of all deductions or
withholdings whatsoever, save only as may be required by law.
17 NOTICES
Any notice required or permitted to be given hereunder shall be deemed
sufficient if sent by facsimile letter or overnight courier, or
delivered by hand to Seller or Buyer at the respective addresses and
facsimile numbers set forth below or at such other address and
facsimile number as either party hereto may designate. If sent by
facsimile letter, notice shall be deemed given when the transmission is
completed if the sender has a confirmed transmission report and if the
sender has sent a confirmation copy by registered mail. If a confirmed
transmission report does not exist, then the notice will be deemed
given when the notice is actually received by the person to whom it is
sent. If delivered by overnight courier, notice shall be deemed given
when it has been signed for. If delivered by hand, notice shall be
deemed given when received.
<PAGE>
if to Buyer, to:
TCPI Holdings, Ltd.
c/o Maples & Calder
P.O. Box 309
Ugland House
South Church Street
Georgetown
Grand Cayman
Cayman Islands
with a copy to:
Technical Chemicals and Products Inc., Guarantor
3341 SW 15th Street
Pompano Beach
Florida 33069
USA
Attention : President
Fax: 001 954 979 6125
if to Seller, to:
Roche Diagnostics GmbH
Sandhoferstr. 116
D - 68305 Mannheim
Germany
Attention: Legal Department Patient Care (Dep. GL-RP)
Fax: +49 / 621 759 1578
18 GOVERNING LAW AND JURISDICTION
18.1 This Agreement shall be governed by and construed in accordance with
the Laws of the Federal Republic of Germany.
18.2 The parties submit to the exclusive jurisdiction of the competent
courts of Mannheim, Germany.
19 ADDITIONAL TERMS
19.1 Brokers. Buyer represents to Seller that it has not employed any
investment banker,
<PAGE>
broker, finder or intermediary in connection with the transactions
contemplated hereby who might be entitled to a fee or any commission
from Seller upon consummation of the transactions contemplated hereby.
Seller represents to Buyer that it has not employed any such person in
connection with the transactions contemplated hereby who might be
entitled to a fee or any commission from Buyer upon consummation of the
transactions contemplated hereby.
19.2 Expenses, Taxes and Fees.
19.2.1 Except as otherwise expressly provided in this Agreement, all legal,
accounting and other costs and expenses incurred in connection herewith
and the transactions contemplated hereby shall be paid by the party
incurring such costs or expenses. Any merger control filing fees and
costs connected with such filing shall be borne by the Buyer.
19.2.2 It is intended that the Business shall be transferred to the Buyer as a
going concern with effect from Closing.
19.2.3 The Seller and the Buyer shall within 30 days of Closing give notice of
such transfer to the appropriate customs and excise authority in
accordance with such regulations and requirements as may be applicable.
19.2.4 The Buyer undertakes to the Seller that after Closing the Business will
be carried on by it as a going concern and the Assets will be used by
it in carrying on the Business or a business of the same kind.
19.2.5 The Purchase Price is exclusive of VAT, Register Tax (or equivalent
local tax) and in the event that the relevant customs and excise
authority determine that any such tax is payable on the sale of the
Business or the Assets, following receipt of a valid tax invoice, the
Buyer shall pay to the Seller an amount equal to the VAT, Register Tax
(or equivalent local tax) payable either five business days prior to
the date on which the Seller is due to account for the same to the
relevant customs and excise authority or, if later, 5 (five) business
days following the receipt of the tax invoice.
19.2.6 VAT, Register Tax (or equivalent local tax) payable in respect of goods
and services supplied or deemed to be supplied by the Seller prior to
the date of Closing and all interest payable and penalties attributable
to such tax shall be paid to the relevant customs and excise authority
by the Seller.
19.2.7 The Seller agrees to fully indemnify and keep indemnified the Buyer in
respect of any VAT, Register Tax (or equivalent local tax) payable in
relation to goods and services supplied or deemed to be supplied prior
to the date of Closing and all interest payable and penalties
attributable to such tax:
<PAGE>
19.3 Entire Agreement. This Agreement, the Schedules (including Disclosure
Schedule), the local Asset Purchase Agreements and the Tradename
License embody the entire agreement of the parties hereto with respect
to the subject matter hereof and supersede and replace all previous
negotiations, understandings, representations, writings, and contract
provisions and rights relating to the subject matter hereof.
19.4 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties and their respective successors and
assigns; provided that this Agreement may not be assigned by any party
without the written consent of the other party.
19.5 Amendments; No Waiver. No provision of this Agreement may be amended,
revoked or waived except by a letter signed and delivered by an
authorized representative of each party. No failure or delay on the
part of either party in exercising any right hereunder will operate as
a waiver of, or impair, any such right. No single or partial exercise
of any such right will preclude any other or further exercise thereof
or the exercise of any other right. No waiver of any such right will be
deemed a waiver of any other right hereunder.
19.6 Counterparts. This Agreement may be executed in one or more
counterparts all of which shall together constitute one and the same
instrument and shall become effective when a counterpart has been
signed by Buyer and delivered to Seller and a counterpart has been
signed by Seller and delivered to Buyer.
<PAGE>
20 LIST OF EXHIBITS
This Agreement contains the following Exhibits with their respective
schedules. Both, the content of Exhibits and Schedules is to be
regarded as content of this Agreement.
Exhibit I: Disclosure Schedule
Exhibit II: Agreed Form of Asset Purchase Agreement for
Argentina
Exhibit III: Agreed Form of Asset Purchase Agreement for
Germany
Exhibit IV: Agreed Form of Asset Purchase Agreement for Italy
Exhibit V: Agreed Form of Asset Purchase Agreement for Spain
Exhibit VI: Agreed Form of Asset Purchase Agreement for
Switzerland
Exhibit VII: Agreed Form of Asset Purchase Agreement for
Uruguay
Exhibit VIII: Trademark List
Exhibit IX: Closing List, including:
Exhibit X: Payment Schedule
Exhibit XI: Side Letter about Handling of Inventory of Local
Affiliates
IN WITNESS WHEREOF, this Agreement has been signed by duly authorized
representatives of each of the parties hereto as of the date first above
written.
Date Date
---------------- ----------------
Roche Diagnostics GmbH TCPI Holdings, Ltd.
i.V. /s/ Jack Aronowitz
----------------------
Jack Aronowitz
S. Ek N. Grzibek
<PAGE>
Exhibit VIII
Trademark List
<PAGE>
VOOSIUS & PARTNER
I Mark EVA PLAN
Italien
548 009 EVA PLAN Kopien der Urkunden
763 469 EVA PLAN am 09.03.2000 uberreicht
Internationale Marken
575 241 EVA PLAN beglaubigter Auszug des OMPI-
Registers am 23.03.2000
nachgereicht
Australien
575 082 EVA PLAN Kopien der Urkunden
575 083 EVA PLAN am 09.03.2000 uberreicht
575 084 EVA PLAN
Estland
15 829 EVA PLAN Kopie eines Registerauszugs
am 09.03.2000 uberreicht
Finnland
210 477 EVAPLAN Kopie der Urkunde am 09.03.2000
uberreicht
Georgien
2763 EVA PLAN Kopie der Urkunde am 09.03.2000
uberreicht
Kuwait
24 605 EVA PLAN keine Auskunft
25 890 EVA PLAN keine Auskunft
Lettland
16 787 EVAPLAN Kopien eines Registerauszugs
am 09.03.2000 uberreicht
Litauen
9486 EVA PLAN Kopie der Urkunde
am 09.03.2000 uberreicht
Norwegen
176 167 EVAPLAN Mitteilung des Stands der Marke
am 09.03.2000 mitgeteilt
2
<PAGE>
VOOSIUS & PARTNER
Spanien
1 974 465 EVA PLAN Kopie der Urkunde
am 09.03.2000 uberreicht
Saudi-Arabien
269/22 EVA PLAN Kopien der Urkunden
269/23 EVA PLAN am 09.03.2000 uberreicht
Schweden Stand der Marke
314 996 EVAPLAN am 09.03.2000 mitgeteilt
Uruguay
261 811 EVAPLAN Stand der Marke
253 849 EVA PLAN am 09.03.2000 mitgeteilt
II. Marke EVA
Danemark
VR 02.203 1997 EVA Kopie der Urkunde
am 09.03.2000 uberreicht
Norwegen
178 451 EVA Stand der Marke
am 09.03.2000 mitgeteilt
Finnland
203 462 EVA Kopie der Urkunde
am 14.03.2000 nachgereicht
III. Marke EVA Graviditetstest
Finnland
206 628 EVA Graviditetstest Kopie der Urkunde
am 09.03.2000 nachgereicht
Norwegen
183 005 EVA Graviditetstest Stand der Marke
am 09.03.2000 mitgeteilt
3
<PAGE>
VOOSIUS & PARTNER
Schweden
324 890 EVA Graviditetstest Stand der Marke
am 09.03.2000 mitgeteiit
IV. Marke EVATEST
Italien
765 237 EVATEST Kopien der Urkunden
301 664 EVATEST am 09.03.2000 uberreicht
Internationale Marke Beglaubigter Auszug des OMPI-
R429 942 EVATEST Registers am 20.03.2000 nachgereicht
Australien
320 109 EVATEST Kopien der Urkunden
320 110 EVATEST am 09.03.2000 uberreicht
Bangladesch
15 818 EVATEST Kopien der Urkunden
15 819 EVATEST am 27.03.2000
15 820 EVATEST nachgereicht
15 821 EVATEST
Brasilien
780 361 172 EVATEST Kopien der Urkunden
780 501 136 EVATEST am 09.03.2000 uberreicht
Bulgarien
12 674 EVATEST Registerauszug der Marke
am 23.03.2000 nachgereicht
Kanada
246 309 EVATEST Stand der Marke
am 09.03.2000 mitgeteilt
Zypern
B20663 EVATEST Stand der Marke
am 09.03.2000 mitgeteilt
beglaubigte Kopien der Urkunden
am 25.04.2000
Kolumbien
148 384 EVATEST Stand der Marke
am 09.03.2000 mitgeteilt
Danemark
VR 05.416 1996 EVATEST Kopien der Urkunde
am 09.03.2000 uberreicht
4
<PAGE>
VOOSIUS & PARTNER
Estland
15 502 EVATEST Kopie des Registerauszugs
arn 09-03.2000 uberreicht
Finnland
82 545 EVATEST Kopie des Registerauszugs
am 09.03.2000 uberreicht
Georgien
4158 EVATEST Kopie der Urkunde und des
Registerauszugs am 23.03.2000
nachgereicht
Lettland
13 903 EVATEST Kopie des Registerauszugs
am 09-03.2000 uberreicht
Litauen
7772 EVATEST Kopie der Urkunde
am 09.03.2000 uberreicht
Hongkong
5531 EVATEST Kopie der Urkunde
am 09.03.2000 uberreicht
Jordanien
16 193 EVATEST Kopien der Urkunden
16 220 EVATEST am 14.03.2000 nachgereicht
Griechenland
61 715 EVATEST Kopie des Registerauszuges
am 20.03.2000 nachgereicht
Indonesian
15l 756 EVATEST Stand der Marke
am 09.03.2000 mitgeteilt
Irland
118 786 EVATEST Kopien der Registerauszuge
118 787 EVATEST am 09-03.2000 uberreicht
Israel
46 285 EVATEST Kopien der Registerauszuge
46 288 EVATEST am 09.03.2000 uberreicht
Kenia
25 090 EVATEST Kopie der Veroffentlichung
25 091 EVATEST der Eintragung am 09.03.2000
uberreicht
5
<PAGE>
VOOSIUS & PARTNER
Kuwait
9837 EVATEST Stand der Marke
9838 EVATEST am 09.03.2000 mitgeteilt
Libanon
38 864 EVATEST Information
am 09.03.2000 mitgeteilt
Malaysien
M/79969 EVATEST Stand am 20.03.2000 mitgeteilt
M/79967 EVATEST Beglaubigte Kopine der Urkunden
am 26.04.2000 nachgereicht
Malta
13 535 EVATEST Kopien der Urkunden
13 537 EVATEST am 09.03.2000 uberreicht
Nigeria
37 043/80/4 EVATEST Stand der Marke
am 09.03.2000 mitgeteilt
Norwegen
176 168 EVATEST Stand der Marke
am 09.03.2000 mitgeteilt
Pakistan
71 742 EVATEST Beglaubigte Kopien der
71 743 EVATEST Registerauszuge am 20.03.2000
nachgereicht
Philippinen
60 578 EVATEST Kopien der Urkunden
60 796 EVATEST am 09.03.2000 uberreicht
Polen
58 725 EVATEST Kopie der Urkunde
am 09.03.2000 uberreicht
Singapur
76 903 EVATEST Kopien der Recherche-Unterlagen
76 904 EVATEST am 09.03.2000 uberreicht
Sudafrika
B88/8501 EVATEST Kopie der Urkunde
am 09.03.2000 uberreicht
6
<PAGE>
VOOSIUS & PARTNER
Sudkorea
216 994 EVATEST Kopie des RegisterauszOges
am 09.03.2000 uberreicht
Sudan
18 767 EVATEST Kopien der Urkunden
18 768 EVATEST am 09.03.2000 uberreicht
Schweden
167 734 EVATEST Kopien des Registerauszuges
am 09.03.2000 uberreicht
Thailand
212 279 EVATEST Kopie des Registerauszuges
am 09.03.2000 uberreicht
Taiwan
511 796 EVATEST Kopie der Verbffentlichung
der Marke am 09.03.2000
uberreicht
Turkei
106 713 EVATEST Kopie der Verbffentlichung
am 09.03.2000 uberreicht
Gro(beta)britannien
1 345 744 EVATEST Kopien des Registerauszuges
1 406 696 EVATEST am 09.03.2000 uberreicht
Uruguay
235 671 EVATEST Stand der Marke
am 09.03.2000 mitgeteilt
USA
1 356 052 EVATEST Beglaubigte der US-Urkunde
am 10.03.2000 nachgereicht
Venezuela
16 510 EVATEST Kopie der Urkunde
am 13.03.2000 nachgereicht
IV. Marke DIAGNOSIS
Italien
412 994 DIAGNOSIS Kopien der Urkunden
335 471 DIAGNOSIS am 09.03.2000 uberreicht
7
<PAGE>
VOOSIUS & PARTNER
Internationale Marke
477 184 DIAGNOSIS Auszug des OMPI-Registers
am 20.03.2000 nachgereicht
VI. Marke EVATIME
Italien
482 303 EVATIME Kopien der Urkunden
495 821 EVATIME am 09.03.2000 uberreicht
Internationale Marke
514 350 EVATIME Auszug des OMPI-Registers
am 20.03.2000 nachgereicht
528 445 EVATIME Auszug des OMPI-Registers am
20.03.2000 nachgereicht
Australien
505 150 EVATIME Stand der Marke
am 09.03.2000 mitgeteilt
Japan
2 181 074 EVATIME Kopien aus dem Markenregister
am 20.03.2000 nachgereicht
Kuwait
22 019 EVATIME keine Auskunft
22 020 EVATIME keine Auskunft
Gro(beta)britannien
1 309 746 EVATIME Kopien des Registerauszuges
1 309 745 EVATIME am 09.03.2000 uberreicht
VII. Marken in Argentinien Kopien der Marken-Liste am
09.03.2000 uberreicht
<PAGE>
Exhibit X
Payment Schedule
<TABLE>
<CAPTION>
For the benefit at signature at approval Ten days prior to Total
of SEC or Closing
at the latest one
hundred and
twenty (120) days
after signature
---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Argentina USD 0,5 USD 1,0 USD 2,0 USD 3,5
Uruguay USD 0,25 USD 0,25 USD 0,5
Switzerland USD 0,25 USD 0,25 USD 0,5
Germany USD 0,25 USD 0,25 USD 0,5
Spain USD 0,25 USD 0,25 USD 0,5
Italy USD 1,0 USD 0,5 USD 1,5
Total USD 0,5 USD 3,0 USD 3,5 USD 7,0
</TABLE>
