BIOCODE-HYCEL
FRANCE S.A.
AGREEMENT
FOR THE SALE OF A
BUSINESS AS A GOING CONCERN
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2
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Translation for information.
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AGREEMENT
FOR THE SALE OF A BUSINESS AS A GOING CONCERN
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1.
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Biocode-Hycel France S.A.
, a company organized under the laws of France having its
registered office at Le Bassin 21320 Pouilly en Auxois, registered
with the Trade and Companies Registry of Beaune under the number
328 517 685, with a share capital of €
2,500,000.32, represented by Mr Roger Duggan, as President General
Director, himself duly represented by Mr Alain Rousseau, duly
authorized for the purpose of this Agreement,
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Hereinafter
referred to as the “ Seller ”,
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2.
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BH Holdings
, SAS, a company organized under the laws of France having its
registered office at rue de Herhoui, ZI Le Chêne Vert 35650
Le Rheu, registered with the Trade and Companies Registry of Rennes
under the number 509 488 169, with a share capital of
€
37,000, represented by Mrs Catherine Bolton, President, herself
duly represented by Mrs Sandrine Nicoue, duly authorized for the
purpose of this Agreement,
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Hereinafter
referred to as the “ Purchaser ”,
The
Purchaser and the Seller being collectively referred to as the
“ Parties ” and individually as a “
Party ”,
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3.
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Escalon Medical Corp.
, a company organized under the laws of Commonwealth of
Pennsylvania having its registered office at 435 Devon Park Drive,
Building 100, Wayne, Pennsylviania 19087, USA, represented by Mr
Richard J. De Piano, President, himself duly represented by Mrs
Sandrine Nicoue, duly authorized for the purpose of this
Agreement,
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Hereinafter
referred to as the “ Guarantor ”,
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4.
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Immunodiagnostic Systems Holdings Plc
, a company organized under the laws of England having its
registered office at 10 Didcot Way, Boldon Business Park, Boldon,
Tyne and Wear NE35 9PD, United Kingdom, registered under the number
05146193, represented by by Mr Alain Rousseau, duly authorized for
the purpose of this Agreement,
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Hereinafter
referred to as “ IDSH ”,
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5.
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Avoxa
, société d’exercice libéral à
responsabilité limitée , with share capital
of €
738,740.00, having its registered office at 5 allée
Ermengarde d’Anjou, ZA Atalante Champeaux CS 40 824 35 108
Rennes cedex 3, registered with the trade and companies registry of
Rennes under number 403 177 637, represented by Mr Florian
Bachelier,
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Hereinafter
referred to as the “ Escrow Agent ”.
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3
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Translation for information.
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A.
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The Seller operates a business as a going concern in Le Rheu and
partly in Pouilly-en-Auxois relating to the development,
manufacture and distribution of haematology and flame photometry
instruments and reagents for haematology laboratories and blood
banks as further described in section 2.2 (the “
Business ”).
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B.
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The Purchaser has carried out a due diligence of the legal,
financial, technical and other documentation in relation to the
Business as provided by Seller, a list of which is attached in
Schedule B (the “ Documentation ”).
Furthermore, an employee of the Purchaser has been placed with the
Seller for the past few weeks preceding the Transfer Date to the
date hereof to meet with the management of the Business to gather
financial information and technical information relating to the
description of the Products, as defined hereafter, and their
manufacturing. Pursuant to such due diligence, the Purchaser has
confirmed its interest in purchasing the Business.
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C.
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The Purchaser desires to purchase from the Seller and the Seller
desires to sell to the Purchaser the Business upon the terms and
subject to the conditions set forth in this agreement (the “
Agreement ”).
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NOW,
THEREFORE IT HAS BEEN AGREED AS FOLLOWS:
In
addition to such terms defined elsewhere in this
Agreement:
“
Affiliate ” means any entity controlling, controlled
by, or under the same control as the Seller within the meaning of
Article L.233-3 of the French Commercial Code.
“
Approval Date ” means the date on which the labour
inspector ( inspecteur du travail ) will give its approval
for the transfer of the Protected Employees in accordance with
Article L. 1224-1 of the French Labour Code.
“
Business ” shall have the meaning set out in section
2.2.
“
Contracts ” shall mean the agreements listed in
Schedule 2.3 entered into by the Seller for the operation of
the Business.
“
Copyrights ” shall mean the copyrights described in
Schedule 2.2.1 (e).
“
Damages ” shall mean any damages, losses, liabilities,
fines, penalties, costs, or expenses suffered by a
Party.
“
Domain Name ” shall mean the domain name registered
with Oleane which can be accessed at the html address
www.biocodehycel.com.
“
Employees ” shall mean the employees attached to the
Business as listed in Schedule 6.6.1.
“
Governmental Authority ” shall mean any court or other
judicial authority or governmental, administrative or regulatory
body, department, agency, commission, authority or
instrumentality.
“
IDSH Non-compete ” shall mean the non-competition and
non solicitation agreement subject to English law entered into at
the date hereof between IDSH and the Purchaser.
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4
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Translation for information.
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“
Intangible Assets ” shall mean the intangible assets
of the Business set forth in section 2.2.1.
“
Intellectual Property ” consists in the assets set out
in sections 2.2.1 (b) to 2.2.1 (f).
“
Know-How ” shall mean the know-how described in
Schedule 2.2.1 (d).
“
Lease ” shall mean the lease agreement entered into on
21 September 2005 between the Seller and the SCI du
Chêne Vert located at Chemin de Carnac, l’Albaderaie,
56400 Ploemel for a duration of 9 years from 21 September 2005
until 20 September 2014, for the premises used for the
Business situated at Le Rheu.
“
Liability ” shall mean any liability, indebtedness,
obligation, expense, claim, loss, damage, deficiency, guaranty or
endorsement of or by any person, accrued or unaccrued, due or to
become due, liquidated or unliquidated.
“
Material Adverse Effect ” means: (1) anything
which would substantially prohibit the Purchaser in producing the
Products or selling the Products, or (2) anything that has the
effect of causing a loss or damage to the Purchaser
exceeding €
10,000.
“
Patents ” shall mean the Patents described in
Schedule 2.2.1 (b).
“
Products ” means the Instruments and Reagents
described in Schedule 2.2.
“
Protected Employees ” means the protected employees (
salariés protégés ) listed in
Schedule 6.6.4.
“
Tangible Assets ” shall mean the tangible assets of
the Business set forth in section 2.2.2.
“
Trademarks ” shall mean the trademarks described in
Schedule 2.2.1 (c).
“
Stock ” shall mean the stock of the Products and
supplies used for the operation of the Business, an inventory of
which has been carried out by both Parties, as set forth in
Schedule 2.2.2 (b).
“
Working Day ” shall mean any day other than Saturday,
Sunday or legal holiday in France, or other day on which commercial
banking institutions in France are required to close.
2.
DESCRIPTION AND SALE OF THE BUSINESS
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2.1
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Sale of the Business
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The Seller hereby sells, transfers and delivers to the Purchaser,
who accepts, the Business as described in section 2.2 under the
terms and conditions hereof.
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2.2
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Description of the Business
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With the exclusion of the items set out in section 2.2.3, the
Business consists in the development, manufacture and distribution
of the Products, as described in Schedule 2.2, for haematology
laboratories and blood banks and comprises the following
assets:
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2.2.1
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Intangible Assets:
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(a)
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the full clientele attached to the Business and the
goodwill;
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(b)
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the Patents as described in Schedule 2.2.1 (b);
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(c)
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the Trademarks as described in Schedule 2.2.1 (c);
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5
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Translation for information.
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(d)
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the Know-How and all trade secrets and non-patented intellectual
property as described in Schedule 2.2.1 (d);
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(e)
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the Copyrights, including computer software and programs, as
described in Schedule 2.2.1 (e);
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(f)
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the Domain Name;
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(g)
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all rights and obligations relating to the assets mentioned above
in paragraphs (a) to (f) and all information, files,
records, data, plans and recorded knowledge, including customer and
supplier lists, related to the Business.
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(a)
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equipment and movable assets used for the operation of the
Business, listed in Schedule 2.2.2 (a), and
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(b)
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the Stock as described in Schedule 2.2.2 (b).
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2.2.3
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Items excluded from the Business:
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(a)
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the after sale services to be provided by the Seller pursuant to
the After Sale Services Agreement as defined hereafter on the
territory of France, including the DOM-TOM, and
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(b)
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the right to the Lease, such Lease being terminated at the date
hereof and the Purchaser entering into a new lease with the
landlord of the premises at the date hereof.
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2.3
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Transfer of Contracts
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In addition to the Business, the Seller hereby transfers to the
Purchaser the Contracts, including all customers contracts,
equipment leases and other contracts utilized in the conduct of the
Business subject to the agreement of the other contracting parties
as provided under section 5.7.
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2.4
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Excluded Liabilities
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The Purchaser shall not be deemed to assume or otherwise be liable
for any liabilities of the Seller or the Business other than as
expressly set forth in this Agreement. The Seller shall retain (and
the Purchaser shall not be obligated for) any and all liabilities
of the Seller of any type that are not expressly assumed by the
Purchaser (the “ Excluded Liabilities
”).
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3.
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PROPERTY AND ENJOYMENT
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3.1
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The Seller declares that it acquired the Business from Hycel
further to the merger between the Seller and Hycel decided by the
extraordinary shareholders’ meeting of 24
June 1993.
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3.2
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The transfer of the full ownership and enjoyment of the Business to
the Purchaser, and the commencement of the use of its attached
rights and prerogatives, shall be effective at the date hereof (the
“ Transfer Date ”).
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4.
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PRICE AND PAYMENT TERMS
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4.1
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Purchase Price and Stock Price
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6
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Translation for information.
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4.1.1
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The sale of the Business, together with the transfer of the
Contracts, is made in consideration of a price of
€
2,025,949 (the “ Purchase Price ”) allocated as
follows:
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(i)
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Patents: €
1,600,000
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(ii)
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All other Intangible Assets other than Patents: €
380,427
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(b)
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Tangible Assets with the exception of the Stock:
€
45,522
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The above allocation of the Purchase Price is provided for the sole
purpose of complying with Article L. 141-1 of the French
Commercial Code but shall not give rise to any liability from
either Party towards the other as regards such allocation
notwithstanding any other valuation from an expert. As the Business
is not isolated on the accounting level from the other activities
carried on by the Seller, these financial items result from a good
faith estimate established on the basis of the Business considered
separately.
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4.1.2
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The sale of the Stock is made in consideration of a price of
€
1,572,051 (the “ Stock Price ”).
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4.2
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Payment of the Purchase Price and the Stock Price
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4.2.1
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The Purchase Price and the Stock Price shall be paid as
follows:
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(a)
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€
25,000 at the date hereof, such sum to be allocated to the payment
of the Stock Price;
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(b)
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the balance of the Purchase Price and the Stock Price, i.e. an
aggregate amount of €
3,573,000 shall be paid in four instalments, under the conditions
provided hereafter, for the following amounts: €
198,000 within 18 months from the Transfer Date,
€
1,000,000 within 30 months from the Transfer Date,
€
1,000,000 within 36 months from the Transfer Date, and
€
1,375,000 within 48 months from the Transfer Date, such sums
to be allocated first to the payment of the Stock, then of the
Tangible Assets and finally of the Intangible Assets.
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(a)
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Interest will accrue on the outstanding amount of the Purchase
Price and the Stock Price at an interest rate of 7% per year on the
basis of the actual days elapsed and a 365 day year, as from
the Transfer Date.
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(b)
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Accrued interest is payable in arrears by the Purchaser for the
first time on 30 November 2009 and continuing thereafter every
6 months, on the last Working Day in May and
November.
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4.2.3
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Prepayment
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The Purchaser shall be entitled at any time to prepay in full or in
part the balance outstanding of the Purchase Price and the Stock
Price (the principal amount of the Purchase Price and/or Stock
Price being prepaid being hereafter referred to as the “
Prepaid Amount ”). Simultaneously upon payment by the
Purchaser of any Prepaid Amount, the Purchaser shall pay to the
Seller, in addition to the interest provided under section 4.2.2
(a), the following prepayment indemnities:
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(a)
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if the Prepaid Amount is paid within 12 months from the
Transfer Date, the Seller shall be entitled to a prepayment
indemnity equal to 6% of the Prepaid Amount,
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7
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Translation for information.
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(b)
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if the Prepaid Amount is paid between the 13
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and the 24
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month from the Transfer Date, the Seller shall be entitled to a
prepayment indemnity equal to 12% of the Prepaid Amount,
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(c)
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if the Prepaid Amount is paid after the 24
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month from the Transfer Date, the Seller shall be entitled to a
prepayment indemnity equal to 18% of the Prepaid Amount.
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Notwithstanding the above, the Purchase Price and the Stock Price
shall in all circumstances be fully repaid at the latest on the
dates provided in section 4.2.1 (b).
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4.2.4
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Defaults
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Any outstanding amounts due under this section 4.2 shall become
immediately and as of right payable by the Purchaser in principal,
accrued interest and accessory charges, in case one of the
following events occurs (an “ Event of Default
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(a)
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the Purchaser fails to pay any amount payable by it under this
Agreement within 15 days after notice from the Seller that
such amount is past due,
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(b)
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in case of any other default by the Purchaser of any of its
obligations under this Agreement which is not remedied within 15
Working Days from notice to this effect by the Seller,
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(c)
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the Purchaser ceases the operation of the Business, for any reason
whatsoever including, without limitation, the sale of the Business
or the dissolution of the Purchaser;
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provided that an Event of Default shall not affect the right of the
Seller to the additional amounts to be paid in accordance with
section 4.2.3 depending on the date of full payment of the Purchase
Price and Stock Price.
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4.2.5
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Set off
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The obligations of the Purchaser under this section 4.2 are
unconditional and irrevocable and cannot be set off against any
debt that the Purchaser would hold against the Seller, unless
otherwise stated herein and the Purchaser hereby waives its rights
under Articles 1290 to 1299 of the French Civil Code for this
purpose.
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4.2.6
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Guarantee
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As a guarantee of the full payment of the Purchase Price and the
Stock Price:
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(a)
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the Seller shall benefit from the seller’s right granted
under Article L. 141-5 of the French Commercial Code on the
Business and all the rights and assets relating to the Business and
shall be entitled to the action for rescission ( action
résolutoire ) provided under Article L. 141-6 of
the French Commercial Code, and
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(b)
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the Guarantor grants to the Seller the guarantee as provided under
section 13.
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5.
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CHARGES AND CONDITIONS OF THE SALE OF THE BUSINESS
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The
present sale is agreed by the Parties under the ordinary and legal
charges and conditions, including the following:
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5.1
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Condition of the Business
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8
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Translation for information.
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5.1.1
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The Purchaser purchases the Business in the state in which it is at
the Transfer Date, without being entitled to claim for any
indemnity nor any decrease of the Purchase Price for any reason
whatsoever, including latent defects ( vices cachés )
in accordance with Articles 1641 to 1649 of the French Civil Code,
except under the terms and conditions provided under section 8 and
under Article 141-3 of the French Commercial Code in relation
to the statements to be provided pursuant to Article 141-1 of
the French Commercial Code.
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5.1.2
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Subject to anything to the contrary herein, the Seller shall bear
all costs and charges relating to the operation of the Business
prior to the Transfer Date and the Purchaser shall bear all costs
and charges relating to the operation of the Business as from the
Transfer Date.
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5.2
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Accounting books
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5.2.1
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The Seller and the Purchaser have, in accordance with
Article L. 141-2 of the French Commercial Code, reviewed and
signed the monthly statement of turnover from 1
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January 2008 to 30 November 2008, in accordance with
Article L. 141-2 of the French Commercial Code, a signed copy
of which is delivered to each Party at the date hereof. However, as
the Business is not isolated on the accounting level from the other
activities carried on by the Seller, the Seller is unable to
present the accounting books separately for the Business for the
last three financial years, in accordance with Article L.
141-2 of the French Commercial Code, and the Purchaser expressly
releases the Seller from such obligation.
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5.2.2
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In accordance with Article L. 141-2 of the French Commercial
Code, the Seller shall hold at the disposal of the Purchaser its
accountancy books relating to the Business for a period of three
years as from the Transfer Date.
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5.3
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Taxes
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The Purchaser undertakes to pay, as from the Transfer Date, all
taxes, all contributions and other charges of any nature relating
to the operation of the Business from and after the Transfer Date,
even in the case where such taxes, contribution and other charges
are in the name of the Seller, it being stated that the amount of
business tax ( taxe professionnelle ) owed for the year 2008
in connection with the Business shall be paid by the
Seller.
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5.4
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Insurance
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5.4.1
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The Purchaser shall at its sole discretion carry on or terminate
the insurance contracts listed in Schedule 5.4.1 entered into
by the Seller in relation to the operation of the Business and
transferred to the Purchaser as from the Transfer Date in
accordance with Article L. 121-10 of the French Insurance
Code.
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5.4.2
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The Seller shall not be liable for subscribing any insurance
policies required to cover, as from the Transfer Date, any risks
resulting from the operation of the Business.
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5.5
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Employees
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5.5.1
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All or part of the employment agreements of the Employees shall be
transferred to the Purchaser as stated in Schedule 6.6.1 at
the date hereof in accordance with Article L. 1224-1 of the
French Labour Code, with the exception of the Protected Employees
listed in Schedule 6.6.4 which shall be transferred on the Approval
Date.
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5.5.2
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The Purchaser shall be liable for any obligations entered into with
the Employees, for the part of their employment agreement
transferred to the Purchaser as stated in Schedule 6.6.1, in
accordance with the French labour Code, as from the Transfer Date
(or from the Approval Date for the Protected Employees) including,
without limitation, for the payment to the
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Translation for information.
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Employees of their salaries, paid vacation, rights under their
employment agreements (including, if any, any premiums or
contributions in kind), which would be accrued and/or payable as
from the Transfer Date (or from the Approval Date for the Protected
Employees) and shall bear all social contributions in relation
thereto.
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5.5.3
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The Seller shall bear for the period ending on the Transfer Date
(or the Approval Date, for Protected Employees), the salaries, paid
vacation, rights under the employment agreements of the Employees
(including, if any, any premiums or contributions in kind) and any
sums due in this respect not paid directly to the Employees prior
to the Transfer Date (or the Approval Date, for Protected
Employees) and consequently payable by the Purchaser shall be paid
by the Seller upon written demand from the Purchaser.
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5.5.4
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The Seller agrees with the Purchaser that the Protected Employees,
subject to their consent, shall be made available to the Purchaser
by the Seller between the date hereof and the Approval Date and
that the Purchaser shall consequently pay to the Seller in
consideration of such availability the remuneration paid to such
Protected Employees and the related social contributions between
the date hereof and the Approval Date.
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5.6
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Lease
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5.6.1
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The guarantee deposit granted by the Seller to the landlord under
the Lease, i.e. an amount of €
55,000, shall be assigned by the Seller to the Purchaser, such
assignment to be notified by process server to the landlord in
accordance with Article 1690 of the French Civil
Code.
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5.6.2
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The Purchaser has agreed to enter into a sub-lease agreement at the
date hereof with the Seller for part of the premises used for the
Business in Le Rheu, such sub-lease agreement being authorised by
the landlord as provided under the new lease entered into between
the Seller and the landlord at the date hereof.
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5.6.3
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The Seller and the Purchaser acknowledge that part of the Business
was operated, prior to the Transfer Date, in the premises owned by
the Seller in Pouilly-en-Auxois, but that the Purchaser shall not
maintain any operation of the Business in such premises after the
Transfer Date, unless as otherwise stated in the Transition
Manufacturing Agreement.
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5.6.4
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The Seller and the Purchaser acknowledge that part of the Business
was operated, prior to the Transfer Date, in the premises leased by
the Seller in Massy, pursuant to a lease agreement dated 1
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July 1997 and renewed on 8 August 2006 between the Seller
and Société Civile de Placement Immobilier having its
registered office at 39 rue de la Bienfaisance, 75008 Paris for a
9-year period ending on 7 August 2015. As these premises are
mainly used for the activities of the Seller other than the
Business, such a lease shall not be transferred to the Purchaser as
a consequence of the sale of the Business. The Seller agrees,
however, to sub-let part of these premises to the Purchaser in
accordance with the sub-letting agreement to be entered into
between the Parties upon receipt of the landlord’s
consent.
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5.7
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Contracts
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5.7.1
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Transfer of Contracts
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The Purchaser shall take over the Contracts, including all
obligations relating thereto, with effect from the Transfer Date,
except for those contracts in respect of which the other
contracting party’s consent is required and has not been
obtained at the date hereof, provided that:
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10
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Translation for information.
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(a)
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the Seller shall make its best efforts until 1
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March 2009 to obtain the consent from the contracting parties
and the Purchaser shall cooperate with the Seller for this
purpose,
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(b)
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until such consent is obtained (or until 1
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March 2009, as appropriate) the Purchaser shall, for its own
benefit and to the extent permitted by the contracts, perform on
behalf of the Seller (but at the Purchaser’s expense) all of
the obligations of the Seller arising out of the contracts after
the Transfer Date (including payment obligations),
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(c)
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until such consent is obtained (or until 1
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March 2009, as appropriate) the Seller shall hold any monies,
goods or other benefits received under such contracts for the
Purchaser and shall forthwith upon receipt of the same pay or
deliver to the Purchaser such monies, goods and other benefits,
and
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(d)
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until such consent is obtained (or until 1
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March 2009 as appropriate) the Seller shall give all
reasonable assistance to the Purchaser to enable it to enforce the
rights of the Seller under such contracts in accordance with the
Purchaser’s instructions,
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(e)
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if on 1
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March 2009, such consent has not been obtained, the contracts
shall be regarded as not having been transferred to the Purchaser
without any liability from the Seller in connection therewith and
the Seller shall be responsible for carrying on or terminating such
contracts with the contracting party at its sole
discretion.
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5.7.2
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Supply contracts
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The Contracts and the Business do not include the benefit and
charge of supply contracts relating to water, electricity,
telephone, etc. which are not transferred to the Purchaser.
However, the Seller will make its best efforts to assist the
Purchaser in obtaining transfer to it of the telephone numbers used
for the Business and listed in Schedule 5.7.2.
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5.8
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Trade Receivables
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The Seller owns the trade receivables from its customers listed in
Schedule 5.8 in relation to the Business (the “ Trade
Receivables ”) and assigns to the Purchaser the Trade
Receivables through a separate receivables assignment agreement
which is entered into by the Parties at the date hereof.
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5.9
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Work in Progress
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5.9.1
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Subject to section 5.7 and in consideration of the amount of the
Purchase Price, all contracts and customers’ orders executed
but not invoiced and performed in whole or in part by the Seller
prior to the Transfer Date shall be invoiced by the Purchaser and
the Purchaser shall keep the proceeds thereof.
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5.9.2
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As a result of section 5.9.1, the Seller shall have no liability
towards the Business’ customers for the contracts and
customers’ orders invoiced by the Purchaser and the Purchaser
shall indemnify and hold harmless the Seller for any loss and
expenses incurred by any claim from a customer against the Seller
in relation to such contracts and customers’ orders,
including reasonable legal fees, in accordance with section 8
hereafter.
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5.9.3
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All costs relating to contracts and customers’ orders
executed and performed by the Seller, in whole or in part, prior to
the Transfer Date shall be borne by the Seller and all costs
relating to contracts and customers’ orders executed by the
Seller prior to the Transfer Date and performed by the Purchaser,
in whole or in part, after the Transfer Date shall be borne by the
Purchaser.
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Translation for information.
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5.10
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Other Agreements
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5.10.1
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The Seller and the Purchaser shall negotiate in good faith and
enter into, within 15 Working Days from the date hereof, a
transition manufacturing agreement in relation to the manufacture
of the Instruments, as described in Schedule 2.2 (the “
Transition Manufacturing Agreement ”), based on the
form of the draft agreement attached hereto in
Schedule 5.10.1.
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5.10.2
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The Seller and the Purchaser shall negotiate in good faith and
enter into, within 15 Working Days from the date hereof, an after
sale services agreement in relation to the after sale services
granted to customers having purchased Products prior to the
Transfer Date or who will purchase Products after the Transfer Date
(the “ After-Sale Services Agreement ”), based
on the heads of terms attached hereto in
Schedule 5.10.2.
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5.10.3
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The Seller and the Purchaser shall negotiate in good faith and
enter into, within 15 Working Days from the date hereof, a
manufacturing agreement relating to the manufacturing of reagents
for IDS-iSys Analyzer based on the form of the draft agreement
attached hereto in Schedule 5.10.3.
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5.11
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Information Technology
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5.11.1
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The Purchaser shall grant access to the Seller to the servers
transferred to the Purchaser as part of the Business for a period
of three months as from the Transfer Date during normal working
hours, for the purpose of copying all data relating to the
activities of the Seller other than the Business.
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5.11.2
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The Seller shall bear all expenses in relation to the copying of
the data as provided in section 5.11.1 and shall indemnify and hold
the Purchaser harmless in case of any damage incurred by its access
to the Purchaser’s servers for the purpose of section
5.11.1.
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5.12
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Trade Name
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5.12.1
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The Seller and the company incorporated under Belgian law,
Biocode-Hycel, sell at the date hereof by separate agreement the
Benelux trademark Biocode-Hycel Biotechnology-Diagnostics
No.00981171 filed on 9 January 2001 for the classes 1, 5, 9,
10, 11 et 42 and the international trademark Biocode-Hycel
Biotechnology-Diagnostics filed on 6 July 2001 under No.
765299 for France and Spain for the classes 1, 5, 9, 10,11 et 42,
such trademark having been limited for France to class
5.
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5.12.2
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The Purchaser hereby authorises the Seller to use “Biocode
Hycel” as a trade name and in its corporate name as
“Biocode Hycel France S.A.” for a period of three
months after the date hereof. During the same period, e-mails
addressed to the Seller and its employees on the e-mail accounts
biocodehycel.com shall be transferred to a server of the
Seller.
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5.13
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Domain Name
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5.13.1
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The sale of the Domain Name shall be notified by the Seller to the
hosting company of the Domain Name, Oléane, within 5 Working
Days from the date hereof.
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5.13.2
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The separation of the web sites www.biocodehycel.com and
www.idsplc.com shall occur within 10 Working Days from the
date hereof and each Party shall cooperate for this
purpose.
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5.13.3
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Notwithstanding the foregoing, the Purchaser undertakes to maintain
the sections “Immunology”, “Biochemistry”,
“3x3” or “Biochimie” on the website
www.biocodehycel.com and to set up a link to address all
Internet users trying to access these sections to the website of
the Seller www.idsplc.com during a period of 45 Working Days
from the date hereof.
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Translation for information.
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5.14
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Products Declarations
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The Seller undertakes to provide to the Purchaser within 5 Working
Days from the date hereof the Seller’s complete file with
respect to all CE mark declarations relating to the
Products.
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6.
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REPRESENTATIONS AND WARRANTIES OF SELLER
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The
Seller hereby make and give to the Purchaser as at the date of this
Agreement the representations and warranties as set forth in this
section 6.
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6.1
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Ownership of the Business
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6.1.1
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The Seller is the lawful owner of the Business and has full legal
right, power and authority to sell, assign and transfer the
Business in accordance with the terms of this Agreement.
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6.1.2
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The Seller is the owner of the assets and rights comprised in the
Business, as described in section 2.2, and neither such assets and
rights nor the Business itself are encumbered by any real or
personal right, easement or security.
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6.1.3
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The purchased assets described in section 2.2 constitute all of the
assets necessary for the operation of the Business as it is
operated at the date hereof, subject to the provisions of section
5.7.
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6.2
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Organization, Authority and Enforceability
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The Seller is a company duly organized and validly existing under
the laws of France. The Seller has the corporate power and
authority to enter into this Agreement and to carry out its
obligations hereunder. The entering into this Agreement and the
consummation of the transactions provided for hereby have been
aut
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