<PAGE>
Exhibit 10.1
STOCK SALE AND PURCHASE AGREEMENT
DATED 31ST OF OCTOBER 2006
BETWEEN
ALLERGAN HOLDINGS FRANCE, SAS
ALLERGAN, INC.
AND
THE SHAREHOLDERS OF GROUPE CORNEAL LABORATOIRES
<PAGE>
STOCK SALE AND PURCHASE AGREEMENT
BETWEEN
ALLERGAN HOLDINGS FRANCE, SAS
ALLERGAN, INC.
AND
THE SHAREHOLDERS OF GROUPE CORNEAL LABORATOIRES
TABLE OF CONTENTS
<TABLE>
<S>
<C>
ARTICLE I DEFINITIONS AND INTERPRETATION
ARTICLE II SALE AND PURCHASE
2.1.
Sale and Purchase of
the Shares
2.2.
Purchase Price;
Payment
2.3.
Cash Adjustment,
Indebtedness Adjustment
ARTICLE III CLOSING
3.1.
Closing Date
3.2.
Payments on the
Closing Date
3.3.
Buyer's Additional
Closing Date Delivery
3.4.
Sellers' Closing Date
Deliveries
3.5.
Transfer of Title to
the Shares
ARTICLE IV CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER AND
SELLERS
4.1.
Merger Control
Approvals
4.2.
Agreement Null and
Void
ARTICLE V REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF
SELLERS
5.1.
Organization of
Sellers
5.2.
Authority of
Sellers
5.3.
No Violation; Consents
and Approvals
5.4.
Organization of the
Target Company and Subsidiaries
5.5.
Financial
Statements
5.6.
Title
5.7.
Inventories
5.8.
Subsidies
5.9.
Taxes
5.10.
Governmental Permits
5.11.
Accreditations
5.12. Assets
5.13.
Intellectual Property; Software
5.14.
Confidential Information
5.15.
Disclosure, Assignment and Inventions
5.16.
Documentation
5.17.
Information Technology
</TABLE>
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
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<S>
<C>
5.18. No
Violation, Litigation or Regulatory Action
5.19.
Contracts
5.20. Employee
Relations
5.21.
Insurance
5.22. Product
Liability
5.23. Accounts
Receivable
5.24. Compliance
with Laws
5.25. Operations
Since 30 June 2006
ARTICLE VI REPRESENTATIONS AND WARRANTIES AND UNDERTAKINGS OF
ALLERGAN, INC. AND THE BUYER
6.1.
Organization of
Buyer
6.2.
Authority of Buyer
6.3.
No Violation; Consents
and Approvals
6.4.
No Violation,
Litigation or Regulatory Action
6.5.
Purchase Price
ARTICLE VII ACTIONS PRIOR TO THE CLOSING DATE
7.1.
Conduct of
Business
7.2.
Financial Reports
7.3.
Reorganization of the
Target Group
ARTICLE VIII INDEMNIFICATION
8.1.
General Indemnity
8.2.
Special
Indemnities
8.3.
Indemnification by
Buyer
8.4.
Notice of Claims
8.5.
Third Party Claims
8.6.
Limitations
8.7.
Effect of
Disclosure
8.8.
Mitigation
8.9.
Acts of the
Indemnified Party
8.10. Change in
Legislation
ARTICLE IX ADDITIONAL AGREEMENTS
9.1.
Tax Matters
9.2.
Confidential Nature of
Information
ARTICLE X NON COMPETE AND NON SOLICITATION UNDERTAKINGS
10.1. Non
Compete Undertakings
10.2. Non
Solicitation Undertakings
ARTICLE XI GENERAL PROVISIONS
11.1. Survival
of Representations and Warranties
11.2. No Public
Announcement
11.3.
Notices
11.4.
Assignment; Successors and Assigns; No Third Party
Beneficiaries
11.5.
Amendments
11.6.
Interpretation
</TABLE>
ii
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
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11.7.
Extension; Waivers
11.8.
Expenses
11.9.
Registration
Duties
11.10.
Severability
11.11. Execution
in Counterparts
11.12. Further
Assurances
11.13. Governing
Law
11.14. Forum
11.15. Entire
Agreement
11.16.
Language
</TABLE>
iii
<PAGE>
STOCK SALE AND PURCHASE AGREEMENT
BETWEEN
ALLERGAN HOLDINGS FRANCE, SAS
ALLERGAN, INC.
AND
THE SHAREHOLDERS OF GROUPE CORNEAL LABORATOIRES
PREAMBLE
BETWEEN THE UNDERSIGNED:
1. ALLERGAN
HOLDINGS FRANCE SAS, a French Societe Par Actions Simplifiee in
formation, represented by its Founder, McGhan Medical BV, a Dutch
company,
represented by Mr. David Endicott, duly authorized for the purpose
hereof,
the "BUYER",
2. ALLERGAN,
INC., a Delaware corporation with offices at 2525 Dupont Drive,
Irvine, California 92623-9534, USA, represented by Mr. David
Endicott, duly
authorized for the purpose hereof,
AND:
3. MR. WALDEMAR
KITA, residing 49 avenue Napoleon, 11180 Uccle, Belgium,
the "CONTROLLING SHAREHOLDER",
4. EUROPEAN
PRE-FLOTATION FUND II, a Fonds Commun de Placement a Risques
organized under the laws of France, represented by its Societe de
Gestion,
EPF
Partners, a Societe Anonyme organized under the laws of France,
represented by Mr. Christian d'Argoubet, duly authorized for the
purpose
hereof,
the "FUND SHAREHOLDER",
5. The remaining
minority shareholders of Groupe Corneal Laboratoires, a
French Societe Anonyme, whose registered office is located at 31
rue des
Colonnes du Trone, 75012 Paris, registered with the commercial
and
companies registry of Paris under No. 443 940 069 (the "TARGET
COMPANY"), a
list
of whom is included in Schedule 2.2(b), represented by the
Controlling
Shareholder, duly authorized for the purpose hereof,
each a "MINORITY SHAREHOLDER" and together the "MINORITY
SHAREHOLDERS",
Parties 3 to 5 (inclusive) are referred to herein individually as a
"SELLER" and
collectively as the "SELLERS",
each a "PARTY" and together the "PARTIES".
<PAGE>
STOCK SALE AND PURCHASE AGREEMENT
BETWEEN
ALLERGAN HOLDINGS FRANCE, SAS
ALLERGAN, INC.
AND
THE SHAREHOLDERS OF GROUPE CORNEAL LABORATOIRES
A. The Buyer is an indirect, wholly-owned subsidiary of Allergan,
Inc., a global
specialty pharmaceutical and medical device company that develops
and
commercializes innovative products for facial aesthetics and other
markets.
B. The Sellers are the sole shareholders of the Target Company, a
French Societe
Anonyme that, directly and through the Subsidiaries (as defined
below) (the
Target Company and the Subsidiaries are referred to herein
collectively as the
"TARGET GROUP") is engaged in the development, manufacture,
distribution and
sale of medical devices.
C. Prior to the date hereof, the Buyer received from the Sellers
documents and
information so as to perform, a legal, financial and operational
due diligence
review of the Target Group with the assistance of external
professional
advisers. Based on such due diligence exercise, the Buyer has
decided to proceed
with the transaction contemplated therein.
In consideration of the premises and the mutual covenants and
agreements
contained in this Agreement, the Parties have agreed as
follows:
AGREEMENT
ARTICLE I
DEFINITIONS AND INTERPRETATION
DEFINITIONS. In this Agreement, the following terms have the
meanings
specified or referred to below.
"ACTION" means any proceeding or investigation by or before any
court,
any governmental or other regulatory or administrative agency or
commission or
any arbitration tribunal.
"AGREEMENT" means this Stock Sale and Purchase Agreement,
including
its Preamble, Recitals, Exhibits and Schedules.
"AFFILIATE" means, with respect to any Person, any other Person
that
directly or indirectly controls, is controlled by or is under
common control
with such Person and, with respect to any individual Person, a
member of such
Person's family. For the purpose of this Agreement, the term
"control" means the
ownership of more than 50% of the voting interests or shares of any
person or
the power to direct its business and affairs.
"BANK GUARANTY" is defined in Section 3.4(m).
<PAGE>
"BUYER" is defined in the Preamble. Reference to the Buyer shall
mean
reference to any Affiliates the Buyer may designate as provided
herein.
"CASH BALANCE" means the aggregate amount, at the close of business
on
the date for which the determination is made, of (i) cash, cheques
less than
three (3) months old and other cash equivalents, (ii) credit
balances with
banks, financial or other similar institutions, including interest
accrued
thereon, being held by the Target Company and the Subsidiaries and
(iii)
marketable securities, short term instruments and deposit accounts
held by the
Target Company and the Subsidiaries, all determined in accordance
with French
GAAP. For the avoidance of doubt, cash received as advanced
payments for
products not yet completed and any items which would otherwise be
considered as
cash but which are not available within the next three (3) months
shall not be
included in the calculation of the Cash Balance. Additionally, any
amount
payable by Inamed Medical Products Corporation (an affiliate of the
Buyer) or
its successors and permitted assignees, to Corneal Industrie SAS, a
French
Societe Par Actions Simplifiee (that is one of the Subsidiaries),
under the
Inamed Distribution Agreements which is overdue on the above date
shall be
considered as cash. Any cash amount expressed in currencies other
than euro will
be translated into euro at the exchange rate used to determine the
respective
balance sheet, in accordance with French GAAP, that includes the
reported cash
amount.
"CASH ADJUSTMENT" is defined in Section 2.2(a).
"CLAIM" is defined in Section 8.4(a).
"CLAIM NOTICE" is defined in Section 8.4(a).
"CLOSING" means the effective purchase by the Buyer of the Shares
from
the Sellers.
"CLOSING DATE" is defined in Section 3.1.
"CONTRACT" means any contract, agreement, lease, commitment and
arrangement .
"CONTROLLING SHAREHOLDER" is defined in the Preamble.
"CONTROLLING SHAREHOLDER'S KNOWLEDGE" means the knowledge of
the
subject matter concerned by Mr. Waldemar Kita, Mrs. Chantal Kita
and/or Mr.
Michel Cheron.
"COPYRIGHTS" means copyrights (whether registered or as
otherwise
validly identifiable under applicable laws and regulations) and
pending
applications to register the same.
"COURT ORDER" means any decision of any foreign, federal,
state,
regional, local or other court or tribunal and any award in any
arbitration
proceeding that is enforceable notwithstanding appeal.
-2-
<PAGE>
"DUE DILIGENCE" means the legal, financial and operational due
diligence review of the Target Company and Subsidiaries performed
by the Buyer,
its counsel and accountants as mentioned in Article V below.
"EMPLOYEES" is defined in Section 5.20.
"ENCUMBRANCE" means any lien, claim, charge, security interest,
mortgage, pledge, easement, conditional sale, option to purchase,
usufruct or
other title retention agreement, defect in title or other
restrictions of a
similar kind.
"ESTIMATED CASH BALANCE" is defined in Section 2.3(a).
"ESTIMATED INDEBTEDNESS" is defined in Section 2.3(a).
"EXPENSES" means any and all reasonable expenses incurred in
connection with investigating, defending or asserting any Action
incident to any
matter indemnified against hereunder (including court filing fees,
court costs,
arbitration fees or costs and fees and disbursements of legal
counsel,
consultants, accountants and other professionals).
"FINAL ADJUSTMENT" is defined in Section 2.3(c).
"FINANCIAL STATEMENTS" means the FY 2005 Financial Statements and
the
Interim 2006 Financial Statements.
"FY 2005 FINANCIAL STATEMENTS" is defined in Section 5.5.
"FUND SHAREHOLDER" is defined in the Preamble.
"GAAP" means generally accepted accounting principles in the
relevant
jurisdiction, applied (to the extent consistent with such
principles) in a
manner consistent with past practices.
"GOVERNMENTAL AUTHORITY" means any foreign, federal, state,
regional,
local or other government, governmental, statutory or
administrative authority,
regulatory body or commission or any court, tribunal or judicial or
arbitral
body.
"GOVERNMENTAL PERMITS" is defined in Section 5.10.
"INAMED DISTRIBUTION AGREEMENTS" mean the agreements entitled
"Development and Distribution Agreement" dated 9 January 2004
between Inamed
Medical Products Corporation and Collagen Aesthetics Australia Pty
Ltd.,
affiliates of the Buyer, and Corneal Industrie SAS, a French
Societe par Actions
Simplifiee which is one of the Subsidiaries.
"INDEMNIFIED PARTY" is defined in Section 8.4(a).
"INDEMNITOR" is defined in Section 8.4(a).
-3-
<PAGE>
"INDEBTEDNESS" means the aggregate amount of:
(i) any and all
interest bearing and non-interest bearing debt to
banks, financial or other similar institutions including but
not
limited to loans, overdrafts, drawn-down facilities, inventory
financing, discounting or similar facilities, including
interest
accrued thereon,
(ii) capitalized leases (including credit-bail agreements) and
financing received through factoring of trade debtors (i.e. the
amount of trade receivables which have been factored but not
yet
collected),
(iii) overdue payables, including overdue trade payables,
taxes,
remuneration, bonuses and related costs taking into account
specified trade terms and where no specified trade terms are
applicable, the past accounting practice of the relevant Target
Company and/or Subsidiary,
(iv) accrued and unpaid contributions and commitments under
pension
and non-pension post-retirement benefit plans,
(v) repayable elements
of any government or other grant,
(vi) restructuring costs accrued and not yet paid,
of (or by) the Target Company and the Subsidiaries as at the close
of business
on the date for which the determination is made, determined in
accordance with
French GAAP. Any Indebtedness in currencies other than the euro
will be
translated into euro at the exchange rate used to determine the
respective
balance sheet, in accordance with French GAAP, that includes the
reported
Indebtedness.
"INDEBTEDNESS ADJUSTMENT" is defined in Section 2.2(a).
"INTELLECTUAL PROPERTY" means Copyrights, Inventions, Patent
Rights,
Trademarks and Trade Secrets that are (i) owned or licensed by the
Target
Company and the Subsidiaries, (ii) used in the conduct of the
business of the
Target Company and the Subsidiaries as currently conducted and/or
(iii)
conceived or reduced to practice before the Closing Date, including
but not
limited to the Copyrights, Inventions, Patent Rights, Trademarks
and Trade
Secrets listed and/or described in Schedule 5.13(a).
"INTERIM 2006 FINANCIAL STATEMENTS" is defined in Section 5.5.
"INTERNAL IT SYSTEM" means the information and communication
equipment
and technologies (including software and associated documentation)
used by the
Target Company and the Subsidiaries.
-4-
<PAGE>
"INVENTION" means any discovery or invention, whether or not
patentable, made by employees, agents or independent contractors of
the Target
Company and/or any of the Subsidiaries during the course of
performance of their
contract with said Target Company and/or Subsidiary, as well as any
discovery or
invention, whether or not patentable, made by the Sellers, related
to
cross-linked hyaluronic acid containing products, together with all
related
intellectual property rights.
"INVENTORIES" is defined in Section 5.7(a).
"LOCAL GAAP" is defined in Section 5.5.
"LOSSES" means all losses, Expenses, liabilities, settlement
payments,
awards, judgments, fines, penalties and damages arising from facts
and/or
circumstances occurring prior to or on the Closing Date, it being
understood
that Losses shall include all damages recoverable under French law
and shall
include amounts that become due or are incurred or suffered before
or after the
Closing Date so long as they arise from facts and/or circumstances
occurring
prior to or on the Closing Date.
"MATERIAL CONTRACT" means a Contract which involves for any of
the
Target Company and/or the Subsidiaries annual revenues in excess of
EUR 75,000
(seventy five thousand euros) or, as regards other commercial
contracts, an
amount of more than EUR 75,000 (seventy five thousand euros)
"MINORITY SHAREHOLDER" and "MINORITY SHAREHOLDERS" are defined in
the
Preamble.
"NET EQUITY DECREASE" means, a reduction in the consolidated
net
shareholders equity (capitaux propres consolides) of the Target
Group ,
comparing such consolidated net shareholders equity as of and for
the period
ending on 31 December 2005 with such consolidated net shareholders
equity on the
Closing Date, without taking account of any payments made or due
under Article 9
of the Inamed Distribution Agreements.
"PATENT RIGHTS" means any patents, patent registrations, patent
applications, design patents, utility models and patent term
extensions.
"PARTY" and "PARTIES" are defined in the Preamble.
"PERMITTED ENCUMBRANCES" means (a) liens for Taxes and other
governmental charges and assessments that are not yet due and
payable and other
similar liens arising in the ordinary course of business for sums
not yet due
and payable, (b) Encumbrances or imperfections on property that are
not material
in amount or do not materially detract from the value of or
materially impair
the existing use of the property affected by such Encumbrance or
imperfection,
(c) pledges or deposits in connection with worker's compensation,
unemployment
insurance and other social security Requirements of Law, (d)
deposits to secure
the performance of any or all of the following: bids, public
procurements or
trade contracts (other than for borrowed money), leases, statutory
obligations
and other obligations of a like nature incurred in the ordinary
course of
business, and (e) Encumbrances and/or title exceptions or
imperfections created
by any of the documents to be executed in connection with the
Closing or this
Agreement whether prior to, at or after the Closing Date.
-5-
<PAGE>
"PERSON" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock
company, trust,
unincorporated organization or Governmental Authority.
"PREAMBLE" means the preamble of this Agreement.
"PURCHASE PRICE" means the price payable by the Buyer in respect
of
the Shares pursuant to Section 2.2.
"REQUIREMENTS OF LAW" means any foreign, federal, state, regional
and
local laws, statutes, decrees, regulations, rules, codes,
ordinances, orders or
requirements enacted, adopted, issued or promulgated by any
Governmental
Authority.
"REVIEW ACCOUNTANTS" is defined in Section 2.3(b).
"SCHEDULES" means the schedules to this Agreement.
"SHARES" means the entirety of the shares and voting rights making
up
the share capital of the Target Company.
"SELLER" and "SELLERS" are defined in the Preamble.
"SOFTWARE" means any software and documentation related
thereto.
"SUBSIDIARIES" means the subsidiaries of the Target Company as at
the
Closing Date which are directly or indirectly owned by the Target
Company (as to
more than 50% of the interests or shares and the corresponding
voting rights)
and listed in Schedule A (individually a "SUBSIDIARY").
"TARGET COMPANY" is defined in the Preamble.
"TARGET GROUP" means the Target Company and the Subsidiaries.
"TAX" means any and all taxes and social security
contributions,
whether direct or indirect, including, but not limited to, income
tax (including
income tax required to be deducted or withheld from or accounted
for in respect
of any payment), any taxes on distributions, dividend withholding
tax,
corporation tax, insurance tax, turnover and/or value added tax,
registration
duties, capital tax, property tax, real estate transfer tax,
environmental
taxes, custom duties, excise duties, taxes on wages, social
security and
retirement contributions, contributions to complementary insurance
plans or
charges and any other taxes, levies, duties, charges, imposts,
withholdings or
para-fiscal charges of any kind whatsoever, whether at the foreign,
federal,
state, regional or local level, together with any interest, penalty
or fine
imposed by any taxing authority of any Governmental Authority.
"TAX RETURN" means any return, report, declaration, notice, account
or
other similar statement required to be filed, given or delivered by
or on behalf
of the company concerned with respect to any Tax (including any
attached
schedules), including any information return, claim for refund,
amended return
or declaration of estimated Tax.
-6-
<PAGE>
"TRADE SECRETS" means trade secrets, know-how, methods,
processes,
formulae or other proprietary information that provides the owner
with a
competitive advantage.
"TRADEMARKS" means trademarks, service marks, logos, Internet
domain
names, trade names and company names including all goodwill
associated therewith
and symbolized thereby, and any registrations and applications to
register the
foregoing, as well as any renewals for any of the foregoing.
"US GAAP" is defined in Section 7.2(a).
"WORKING CAPITAL" means the amount which results from subtracting
(x)
the sum of the Target Company' and Subsidiaries' current
liabilities, including
all accounts payable (including without limitation trade, fixed
asset and other
payables) and other accrued expenses and potential current
liabilities
(including without limitation accrued employee expenses, accrued
taxes, accrued
selling, marketing and administrative expenses), from (y) the sum
of the Target
Company' and Subsidiaries' current assets net of reserves,
including accounts
receivable net of allowances, plus inventory, prepaid expenses and
other current
assets, if any, but excluding cash.
ARTICLE II
SALE AND PURCHASE
2.1. SALE AND PURCHASE OF THE SHARES. Subject to the terms and
conditions of this Agreement and in particular to the conditions
precedent
set
forth in Article IV, the Sellers irrevocably undertake to sell,
transfer, assign, convey and deliver the Shares, free and clear of
all
Encumbrances, to the Buyer (and/or the Affiliates the Buyer may
chose to
substitute) on the Closing Date and the Buyer (and/or the
Affiliates the
Buyer may chose to substitute) irrevocably undertakes to purchase,
assume
and
acquire the Shares from the Sellers, free and clear of all
Encumbrances, on said Closing Date.
2.2. PURCHASE PRICE; PAYMENT.
(a) The aggregate purchase price for the Shares and the rights
granted hereunder (the "PURCHASE PRICE") shall be equal to (i) EUR
170,000,000
(one hundred seventy million euros), (ii) decreased by the amount
(if any) of
the Indebtedness as at the close of business on the last day of the
calendar
month ending immediately prior to the Closing Date (the
"INDEBTEDNESS
ADJUSTMENT"), determined as provided in Section 2.3, and (iii)
increased by the
amount (if any) of the Cash Balance as at the close of business on
the last day
of the calendar month ending immediately prior to the Closing Date
(the "CASH
ADJUSTMENT"), determined as provided in Section 2.3.
(b) The Purchase Price shall be paid as provided in Section 3.2
and Section 2.3(c) and apportioned among the Sellers pro-rata to
the number of
Shares sold by each of them, as provided in Schedule 2.2(b).
-7-
<PAGE>
2.3. CASH ADJUSTMENT, INDEBTEDNESS ADJUSTMENT.
(a) Estimated Adjustment. Seven (7) days prior to the Closing
Date, the Sellers shall in good faith provide to the Buyer: (i)
their best
estimate of the Indebtedness as of the last day of the second
calendar month
prior to the Closing Date (the "ESTIMATED INDEBTEDNESS"); and (ii)
their best
estimate of the Cash Balance as of the last day of the second
calendar month
prior to the Closing Date (the "ESTIMATED CASH BALANCE"). For
example, if the
Closing Date is 2 January 2007, the estimates above shall be made
as of 30
November 2006. A trial estimate of the Cash Adjustment and of the
Indebtedness
Adjustment, as of 30 June 2006, shall be provided by the
Controlling Shareholder
to the Buyer, within two (2) weeks of the date hereof.
Each of these estimates shall be made on a consolidated basis for
all entities
in the Target Group, eliminating any inter-company receivables or
payables. The
Controlling Shareholder shall advise the Buyer by notice in advance
of any event
or circumstance likely to increase or decrease by more than EUR
1,000,000 (one
million euros) the total of the Cash Adjustment and the
Indebtedness Adjustment
that is not in the ordinary course of business and that occurs
during the
calendar month immediately prior to the Closing Date, and the
Estimated
Indebtedness and the Estimated Cash Balance shall be adjusted in
good faith in
order to ensure that the Estimated Cash Balance and the Estimated
Indebtedness
reflect the Parties' best estimate of the Cash Adjustment and the
Indebtedness
Adjustment. Based upon the above estimates, the Parties shall (x)
adjust
downwards the Purchase Price by the amount of the Estimated
Indebtedness and (y)
adjust upwards the Purchase Price by the amount of the Estimated
Cash Balance
(if the amount is positive) or adjust the Purchase Price downwards
(if the
amount is negative) so as to determine the estimated amount of the
Purchase
Price, which estimated amount will be payable by the Buyer on the
Closing Date.
(b) Final Adjustment.
(i) Within one (1) month after the Closing Date, Ernst &
Young shall prepare a report to the Buyer and the Sellers stating
the amount of
the Cash Adjustment and the Indebtedness Adjustment. No later than
one (1) month
after the receipt of such report or, if such report is not timely
received,
within two (2) months after the Closing Date, the Buyer shall
notify to the
Sellers whether it objects to the Estimated Indebtedness and to the
Estimated
Cash Balance (stating in reasonable details the reasons for such
objection).
(ii) If the Buyer does not give notice to the Sellers,
within the time period set forth in Section 2.3(b)(i) after the
Closing Date (or
if the Buyer has provided written notice to the Sellers that it has
no objection
to the Estimated Indebtedness and the Estimated Cash Balance), the
Estimated
Indebtedness and the Estimated Cash Balance shall be deemed to be
final and
binding for the purposes of this Section 2.3.
(iii) If the Buyer gives notice to the Sellers that it
objects to the Estimated Indebtedness and to the Estimated Cash
Balance, the
Controlling Shareholder and the Buyer shall meet and negotiate in
good faith in
order to reach agreement with respect to the amount of the Final
Adjustment.
-8-
<PAGE>
(iv) If no agreement can be reached within fifteen (15) days
as from notification of the Buyer's objection, the Parties agree to
the
appointment of BDO (the "REVIEW ACCOUNTANTS"), said Review
Accountants acting as
experts and not as arbitrators, to prepare a final and conclusive
determination
of the Indebtedness Adjustment and the Cash Balance Adjustment and
of the
adjustment of the Purchase Price required as a result thereof. The
Review
Accountants shall render their report within one (1) month of such
retention,
which report shall be, one (1) week after it is issued, a final and
binding
determination of the amount of the Indebtedness Adjustment, the
Cash Balance
Adjustment and the Purchase Price for the purposes of this Section
2.3, absent
gross error or gross negligence on the part of the Review
Accountants.
(c) Purchase Price Payment. In the event that the Purchase
Price
is modified pursuant to the provisions of this Section 2.3, the
amount required
to be paid as a result of such modification by either the Buyer or
the Sellers
(as the case may be) (the "FINAL ADJUSTMENT") shall be paid by wire
transfer of
immediately available funds within one (1) week of the date on
which such
modification becomes final, to such bank accounts as the Buyer or
the
Controlling Shareholder and Fund Shareholder, as the case may be,
may indicate
by notice no later than three (3) days after the date that such
modification
becomes final. Payments due by the Sellers shall be made by the
Controlling
Shareholder, (acting for himself and the Minority Shareholders) and
the Fund
Shareholder pro rata to the respective shareholdings in the Target
Company held
by the Controlling Shareholder and the Minority Shareholders (taken
together),
on the one hand, and the Fund Shareholder, on the other hand.
(d) Miscellaneous. The fees and expenses of the Review
Accountants shall be paid in equal parts by the Buyer and the
Controlling
Shareholder. The Parties shall use all reasonable endeavors to
procure that all
records, working papers, and other information as may be reasonably
required for
the purposes of this Section 2.3 (whether in the possession of the
Target
Company, and of Subsidiaries or any Party to this Agreement or any
professional
advisor of any such Party) shall be made available on request and
shall
generally render all reasonable assistance necessary for the
preparation of the
report of the Review Accountants.
ARTICLE III
CLOSING
3.1. CLOSING DATE. Except as provided in Section 7.2, the
Closing
shall occur effective 12:01 AM Paris time on the first business day
of the month
after the month in which the last of the conditions precedent set
forth in
Article IV is satisfied (or, where applicable, waived by the
Buyer), so long as
such business day is a business day in Paris, France and Irvine,
California (or
the next such business day if it is not) and so long as at least
one (1) week's
prior notice of the Closing is given, at the offices of Reinhart
Marville Torre
in Paris, and no later than 2 April 2007 and no earlier than 2
January 2007, or
at any other time or place or on any other date as shall be agreed
upon by the
Parties. The Parties hereby undertake to make their best efforts to
allow the
Closing to take place on 2 January 2007. The Parties further agree
that they
shall keep
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each other informed of: (i) the progress of the collection of the
closing
documents listed in Section 3.3 and Section 3.4; and (ii) the
fulfillment of the
conditions precedent referred to in Article IV, on a weekly basis
between the
date hereof and the Closing Date. The time and date that the
Closing is actually
held are referred to in this Agreement as the "CLOSING DATE".
3.2. PAYMENTS ON THE CLOSING DATE. The Purchase Price shall be
paid on the Closing Date by wire transfer of immediately available
funds to such
bank accounts as the Controlling Shareholder (acting for itself and
for the
Minority Shareholders) and the Fund Shareholder shall respectively
indicate by
notice no later than five (5) days prior to the Closing Date.
3.3. BUYER'S ADDITIONAL CLOSING DATE DELIVERY. Subject to the
delivery by the Sellers of the documents referred to in Section
3.4, the Buyer
shall deliver to the Sellers at the Closing (i) a certificate
confirming that
the representations and warranties made in Article VI are true and
correct on
the Closing Date as though made on said Closing Date (except to the
extent that
they expressly relate to an earlier date), in the form attached in
Schedule
3.3(i), signed by a duly authorized signatory of the Buyer and (ii)
a duly
signed counterpart of the consulting agreements to be entered into
with Mr.
Waldemar Kita and Ms. Chantal Kita (the "Consulting
Agreements").
3.4. SELLERS' CLOSING DATE DELIVERIES. Subject to the delivery
by
the Buyer of the documents referred to in Section 3.3, the Sellers
shall deliver
to the Buyer all of the following at the Closing:
(a) A certificate signed by the Controlling Shareholder, in the
form attached in Schedule 3.4 (a), (w) confirming that the
representations and
warranties made by the Controlling Shareholder in Article V are
true and correct
on the Closing Date as though made on said Closing Date (except to
the extent
that they expressly relate to an earlier date and subject to any
updating of the
Schedules according to the terms of the draft certificate attached
as Schedule
3.4 (a)) and (x) confirming the absence, as at the Closing Date, of
any Net
Equity Decrease;
(b) A certificate signed by the Fund Shareholder, in the form
attached in Schedule 3.4 (b) (y) confirming that the
representations and
warranties made by the Fund Shareholder in Article V are true and
correct on the
Closing Date as though made on said Closing Date (except to the
extent that they
expressly relate to an earlier date), and (z) confirming the
absence, as at the
Closing Date, of any Net Equity Decrease;
(c) Certificates signed by each of the Minority Shareholders,
in
the form attached in Schedule 3.4(c), confirming that the
representations and
warranties made by each of them in Article V are true and correct
on the Closing
Date as though made on said Closing Date (except to the extent that
they
expressly relate to an earlier date);
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<PAGE>
(d) Where applicable, share transfer forms, notarial deeds
and/or
certificates related to the Shares duly executed and drawn up in
favor of the
Buyer (and/or the Affiliates the Buyer may chose to substitute) as
set out in
Schedule 3.4(d);
(e) Where required under applicable laws, minutes of board of
directors and/or shareholders' meetings of the Subsidiaries
approving the
transfer of all outstanding shares held by third parties, in
particular by the
directors of each relevant Subsidiary;
(f) Copies of requests for consent and any replies received
from
the competent Persons in relation to the contracts listed in
Schedule 3.4(f) to
the effect that said Persons consent to the sale and purchase of
the Shares and
agree not to exercise any right (whether of termination or
otherwise) arising by
reason of such transaction, pursuant to any authorization or
Contract containing
change of control/management provisions or which legal regime
requires a prior
approval in case of change/management of control; the Controlling
Shareholder
shall make his best efforts to obtain such consents of said
Persons;
(g) Evidence or written confirmation of the cancellation and
release of any and all (i) guarantees granted by the Target Company
and the
Subsidiaries to any entity not a member of the Target Group and
(ii) obligations
to Imatrade Inc. with respect to the negotiation, preparation and
signature of
agreement(s) entered into by the Target Company and/or any of the
Subsidiaries
with Inamed Medical Products Corporation and its Affiliates;
(h) The transfer agreements, notarial deeds and share transfer
forms whereby the Sellers purchased any and all outstanding Shares
and
outstanding shares in the Subsidiaries held by third parties, and
in particular
by the directors of each relevant company, as at the date hereof,
all duly
completed and signed;
(i) Except as may otherwise be agreed, resignation letters
(confirming the absence of any outstanding claim against the
relevant Target
Company and the Subsidiaries), effective as at the Closing Date, of
all
mandataires sociaux of the Target Company and the Subsidiaries and
of any
members of the Controlling Shareholder's family who are employees
of Target
Company or any of its Subsidiaries, without any indemnity or
payment other than
accrued remuneration and benefits through the Closing Date;
(j) The convening letters for shareholders' and board meetings
which will appoint the persons designated by the Buyer in
replacement of the
legal representatives and directors of the Target Company and the
Subsidiaries
having resigned pursuant to Section 3.4(i);
(k) A certified copy of the minutes (confirming, if necessary
under applicable Requirements of Law, a positive opinion) with
respect to the
information and/or consultation of the Target Company' and the
Subsidiaries'
employee representatives, if any, in connection with the
transaction hereof;
(l) The up-to-date originals of the share transfer register,
the
shareholders' accounts, as well as the minutes of the board of
directors'
meetings and the
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<PAGE>
shareholders' meetings of the Target Company and the Subsidiaries
or any other
similar corporate secretarial documentation (including all
documents evidencing
ownership title to the shares of the relevant company and all
relevant
documentation pertaining to the conversion of the Target Company
into a French
Societe Par Actions Simplifiee and the mergers of Laboratoires
d'Esthetique
Appliquee S.A. with Corneal Industrie S.A.S. and Corneal
Technologies with
Corneal Industrie, pursuant to Section 7.3 below);
(m) A duly executed counterpart of a bank guaranty to be issued
by a bank of first rank international reputation substantially in
the form
attached hereto as Schedule 3.4(m) (the "BANK GUARANTY"). The Bank
Guaranty
shall be a Demand Guarantee governed by the Uniform Rules for
Demand Guarantees
of the International Chamber of Commerce (Publication No. 458) and
shall provide
for payment on first demand upon presentation of a written demand
for payment
and such accompanying documents as are provided for in Schedule
3.4(m). The Bank
Guaranty shall provide for aggregate maximum payments of EUR
30,000,000 (thirty
million euros) and, as provided therein, such aggregate maximum
payment amount
shall be reduced by EUR 10,000,000 (ten million euros) on each of
the following
dates: (i) the first anniversary of the Closing Date, (ii) eighteen
(18) months
after the Closing Date, and (iii) twenty-four (24) months after the
Closing
Date, in each case subject to such amounts not being required to
satisfy Claims
made in a Claim Notice or deemed made by the Buyer as provided by
the Bank
Guaranty prior to such dates;
(n) Documentation setting forth any confidential manufacturing
know-how, procedures or techniques used by Target Company and/or
its
Subsidiaries, in detail sufficient to allow uninterrupted use of
such know-how,
procedures or techniques notwithstanding the departure from the
Target Group of
any of the employees or officers thereof and to be made available
to the Buyer
for review at least one (1) week prior to the Closing Date
(provided that the
Parties have effectively determined such Closing Date), in the
Target Company's
premises; and
(o) A duly signed
counterpart of the Consulting Agreements.
It is expressly understood and agreed that the delivery by the
Sellers to the
Buyer at the Closing of the documents listed in Sections 3.4(a),
3.4(d), 3.4(f),
3.4(l), 3.4(m), and 3.4(n) above constitutes a substantial and
determining
condition to the Buyer's decision to purchase the Shares, without
which the
Buyer would not have entered into this Agreement. If any of such
documents are
not delivered by Seller at Closing, the terms of Section 4.2 shall
apply.
3.5. TRANSFER OF TITLE TO THE SHARES. Title and possession of
the
Shares shall pass from the Sellers to the Buyer (and/or the
Affiliates the Buyer
may chose to substitute) on the Closing Date upon the exchange of
the documents
referred to in Section 3.3 and Section 3.4, and confirmation that
irrevocable
orders have been given for the payment of the Purchase Price as
provided for in
Section 3.2 as well as receipt by the Controlling Shareholder (for
themselves
and acting as agents for the other Sellers) of satisfactory proof
of the
payments to be made by the Buyer under Section 3.2.
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<PAGE>
ARTICLE IV
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER AND SELLERS
The obligations of the Buyer and the Sellers under this Agreement
shall be
subject to the satisfaction, on or prior to the Closing Date, of
the following
condition:
4.1. MERGER CONTROL APPROVALS.
(a) The Parties shall have received all approvals (whether
tacit
or express and without significant conditions) that are necessary
to consummate
the transaction contemplated by this Agreement from the following
competent
Governmental Authorities pursuant to applicable merger control
regulations: the
German Federal Cartel Office and the Spanish competition
authorities.
(b) The Buyer undertakes to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary,
proper or
advisable in order to enable the completion of the condition
precedent set out
in Section 4.1(a) above as soon as possible in order that the
Closing Date fixed
by the Parties pursuant to Section 3.1 may be met. The Buyer shall
inform the
Sellers on a timely manner of the progress made in this respect and
shall
immediately notify them of the completion of this condition
precedent.
(c) The Sellers undertake to fully cooperate with the Buyer in
order to enable the completion of the condition precedent set out
in Section
4.1(a) above as soon as possible, in order that the Closing Date
fixed by the
Parties pursuant to Section 3.1 may be met. The Sellers shall
provide the Buyer
with all useful information and documents for this purpose.
4.2.
AGREEMENT NULL AND VOID. If on 4 April 2007 at the latest
(or on any other date as shall be agreed upon by the Parties), the
above
condition precedent have not been fulfilled, this Agreement shall
lapse and
become null and void (except as concerns the confidentiality
obligation) and no
expenses or damages of any kind shall be due by the Buyer to the
Sellers or by
the Sellers to the Buyer (other than in case of breach by one of
the Parties of
its obligations hereunder which results in the Closing failing to
take place by
such date).
ARTICLE V
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF SELLERS
In the context of the Due Diligence, the Buyer and its counsel and
accountants
have been granted by the Sellers access, in a data room held at
Reinhart
Marville Torre law offices from 26 June 2006 to 12 July 2006 and 5
October 2006
to 13 October 2006, to documents relating to the Target Company and
of the
Subsidiaries and their operations; they have been able to proceed
with site
visits and to meet with certain senior managers of the Target
Company and of the
Subsidiaries. More generally, they have been able, in the context
of the Due
Diligence, to make further inquiry which they have deemed useful or
necessary
prior to entering into this Agreement.
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<PAGE>
In this context, the Buyer has carried out accounting, financial,
legal and tax
reviews of the Target Company and the Subsidiaries. Having reviewed
the
information and documents so provided, the Buyer has thus confirmed
its
intention to purchase the Shares.
The Controlling Shareholder covenants with the Buyer as provided in
this Article
V and represents and warrants to the Buyer that each of the
statements set forth
below is true and correct on the date hereof and will be true as of
the Closing
Date. The Fund Shareholder and each of the Minority Shareholders
represent and
warrant to the Buyer that each of the statements set forth in
Section 5.1,
Section 5.2, Section 5.3 and paragraphs (a) to (h) of Section 5.4
is true and
correct as concerns each of them on the date hereof and will be
true as of the
Closing Date.
For the avoidance of doubt, the Parties expressly agree that the
Controlling
Shareholder makes no representation or warranty with respect to (i)
the future
relations of the Target Company or any of the Subsidiaries with any
customers or
suppliers subject to provisions of Section 5.19 below, (ii) the
validity or tax,
labor, financial or any other impact of the operations to be
completed prior to
the Closing Date pursuant to Section 7.3 below, nor (iii) with
regard to the
financial or business prospects of the Target Company or any of
the
Subsidiaries.
The Buyer is not aware of any facts or circumstances not disclosed
to the
Sellers on the basis of which the Buyer could make an immediate
Claim.
5.1. ORGANIZATION OF SELLERS. The Sellers are individuals with
full power to sell their shares or are duly organized or
incorporated legal
entities, validly existing under their respective laws, with full
power to
conduct their respective businesses as conducted at the date of
this Agreement.
5.2. AUTHORITY OF SELLERS.
(a) The execution, delivery and performance of this Agreement
by
the Sellers, if not individuals, have been duly authorized and
approved by the
Sellers' respective corporate bodies and do not require any
further
authorization or consent of the Sellers or their respective
shareholders.
(b) This Agreement and the attached agreements which are to be
entered into by the Sellers will, when executed, constitute valid
and binding
obligations of the Sellers.
5.3. NO VIOLATION; CONSENTS AND APPROVALS.
(a) Neither the execution nor the delivery of this Agreement or
the other agreements referred to herein nor the performance by the
Sellers of
their obligations under this Agreement shall, whether by the giving
of notice or
upon the expiration of a time-limit, or both, conflict with any
other agreement,
result in a default or loss of rights of any kind, or result in the
creation of
any Encumbrance and/or in the creation or increase of any
contractual obligation
to any third party.
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<PAGE>
(b) In particular, neither the execution nor the delivery of
this
Agreement or the other agreements referred to herein, nor the
performance by the
Sellers of their obligations under the Agreement, shall terminate
or otherwise
diminish any rights (including but not limited to indemnification
rights and
Governmental Permits) granted to the Sellers, the Target Company
and/or the
Subsidiaries.
(c) Subject to the fulfillment of the conditions precedent,
neither the execution and the delivery of this Agreement, nor its
performance by
the Sellers shall contravene or violate any Requirements of Law
and/or Court
Orders of any Governmental Authority.
(d) Other than as referred to in this Agreement:
(i) no announcements, consultations, notices, reports or
filings are required to be made by any of the Sellers, any Target
Company and/or
any Subsidiary in connection with the performance of the
obligations of the
Sellers under this Agreement or in connection with the performance
of the
obligations of any Sellers, the Target Company and/or the
Subsidiaries under the
Agreement and/or the related documents; and
(ii) no consents, approvals, registrations, authorisations
or permits are required to be obtained by the Sellers, any Target
Company and/or
any Subsidiary in connection with the execution and performance of
this
Agreement and/or any documents related hereto.
5.4. ORGANIZATION OF THE TARGET COMPANY AND SUBSIDIARIES.
(a) The Target Company and the Subsidiaries are companies
validly
incorporated, registered and existing under the laws of the
jurisdiction of
their incorporation. The Target Company and the Subsidiaries have
the corporate
power and authority to own or lease and operate their assets and
their business
in the manner operated prior to the date hereof.
(b) Subject to the provisions of Schedule 5.4 (b), the Shares
shall represent the entirety of the issued and outstanding share
capital and
voting rights of the Target Company. The shares in the Subsidiaries
held
collectively by the Target Company and other Subsidiaries shall, on
the Closing
Date, represent the entirety of the issued and outstanding share
capital and
voting rights of the Subsidiaries.
(c) All the Shares and all the shares of the Subsidiaries shall
have been validly issued and fully paid under the applicable
legislation in the
jurisdiction of incorporation of the relevant Target Company or
Subsidiary.
(d) There is no liability to pay any additional contributions
on
the Shares and/or on the shares of the Subsidiaries.
(e) Except pursuant to capital increases of Subsidiaries
described in Schedule 5.6(a) and which will be subscribed
exclusively by
companies of the Target Group, no person has the right (exercisable
now or in
the future and whether contingent or not) to call for the issue of
any share or
loan capital in any Target Company and/or any Subsidiary.
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<PAGE>
(f) The Sellers are the sole legal and beneficial owners of the
Shares and are entitled to transfer or procure the transfer of the
full
ownership of the Shares, free and clear of all Encumbrances, to the
Buyer on the
terms set out in this Agreement. The Target Company and the
Subsidiaries, as the
case may be, are the sole legal and beneficial owners of the shares
of the
Subsidiaries, said shares being free and clear of all Encumbrances.
There is no
pending or threatened claim or litigation with respect to such
ownership of
shares of the subsidiaries.
(g) The copies of the organizational documents of the Target
Company and the Subsidiaries, as well as the excerpts from the
competent
companies or trade registry of said Target Company and Subsidiaries
are true,
complete, up-to-date and said documents comply with the relevant
Requirements of
Law.
(h) All returns, resolutions and other documents to be filed
with
or delivered to the competent companies or trade registry of the
Target Company
and the Subsidiaries pursuant to applicable Requirements of Law,
have been
correctly drawn up and duly filed by the appropriate due dates.
(i) The Target Company's and the Subsidiaries' corporate
records
and other registers to be kept pursuant to applicable Requirements
of Law are
up-to-date, have been properly kept.
(j) The Target Company and the Subsidiaries have drawn up all
accounts, ledgers and other financial records according to GAAP and
pursuant to
applicable Requirements of Law.
(k) The Target Company and the Subsidiaries have not acted (x)
as
directors or legal representatives of any company, other than the
Target Company
or any Subsidiary, as the case may be, and (y) as de facto managers
of any
company.
(l) Except as set forth in Schedule 5.4 (l), the Target Company
and the Subsidiaries have not been the subject of any criminal
penalty related
to the conduct of their business activities. To the Controlling
Shareholder's
Knowledge, no acts or deeds is likely to result in criminal
sanctions being
imposed on the Target Company and/or the Subsidiaries.
(m) Except as set forth in Schedule 5.4 (m), the Target
Company,
the Subsidiaries and their respective legal representatives and
employees have,
in the conduct of their activities, complied with all material
Requirements of
Law, and have, where necessary, obtained all requisite
authorizations or
exemptions.
(n) The Target Company and the Subsidiaries do not own any
equity
interests in any other company, any partnership, trust and/or joint
venture. The
Target Company and the Subsidiaries do not own any equity interests
in any other
entity in which their liability may be unlimited and never held any
such equity
interests.
(o) Except as set forth in Schedule 5.4 (o), the Target Company
and the Subsidiaries are not in a state of cessation of payments
(cessation de
paiements), have not suspended their payments and are not subject
to any
court-ordered reorganization, insolvency, liquidation or other
similar
proceedings under any relevant jurisdiction. To the Controlling
Shareholder's
Knowledge, no events have occurred which, under applicable
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<PAGE>
laws, are likely to justify any such proceedings being instigated
against the
Target Company and/or the Subsidiaries. Neither Target Company nor
any
Subsidiary has made any voluntary arrangement with any of its
creditors or is
insolvent or unable to pay its debts as they fall due.
(p) Except as set forth in Schedule 5.4 (p), all corporate
reorganizations concerning the Target Company and/or the
Subsidiaries and
implemented over the last five years have been validly implemented
and no
liability (notably Tax liability) may arise as a result therefrom
for the Target
Company and/or the Subsidiaries.
5.5. FINANCIAL STATEMENTS.
(a) The Controlling Shareholder and the Buyer have initialed
for
identification the audited financial statements of the Target
Company and of the
Subsidiaries as at and for the period ending 31 December 2005 (the
"FY 2005
FINANCIAL STATEMENTS" such as set out in Schedule 5.5 (a)) which
include (1) the
audited consolidated financial statements with all required notes
and appendixes
for the Target Group, in accordance with French GAAP, and (2) a
balance sheet
and an income statement, with appropriate notes and appendixes, in
accordance
with the relevant country's GAAP ("LOCAL GAAP") for the Target
Company and each
Subsidiary.
(b) The FY 2005 Financial Statements have been prepared in
accordance with GAAP and the Requirements of Law and, are in all
material
respects, complete and presented in accordance with French and
Local GAAP as the
case may be. More specifically, the FY 2005 Financial Statements
give, in
relation to the Target Company and/or the Subsidiaries, a true and
fair view of
the state of affairs of the Target Company and/or Subsidiaries
and/or their
assets and liabilities as at 31 December 2005 and of the results
thereof for the
financial year ended on 31 December 2005. The accounts for each of
the last
three (3) financial years ended on 31 December were prepared in
accordance with
the Requirements of Law and French and Local GAAP, as the case may
be.
(c) The Controlling Shareholder and the Buyer have initialed
for
identification the consolidated financial statements of the Target
Group,
including ap
