The Negotiation and Drafting of International Contracts Course of Mr. Robert Simpson

Article 1. Acquisition of shares

1.1. The shares of the Company immediately prior to the Closing have been held as follows:

B 2 925 shares 25.00%

A 1850 shares 50.00%
Total: 3700 shares 100.00%
1.2. The Sellers are causing the Company to issue at the Closing, 1824 new shares with a par value of 10 Euros per share, all of which shares have been reserved exclusively for, and are being purchased and acquired entirely by, the Buyer at the Closing. The shares of the Company, after such increase in capital, are held as follows:
Buyer 1824 shares 33.020%

B 1 925 shares 16.745%

B 2 925 shares 16.745%

A 1850 shares 33.490%

Buyer 2762 shares 50.00%

B 1 456 shares 08.25%

B 2 925 shares 16.75%

A 1381 shares 25.00%
Total: 5524 shares 100.00%
1.4. (Draft language)
It is understood that, in order to simplify the Buyer’s acquisition of the Shares, the Sellers have acquired shares from minority shareholders. The Sellers shall accordingly have the right, subsequent to the Closing, to reallocate part of their shares to such minority shareholders as follows, it being understood that the Sellers guarantee the Buyer that such shareholders shall have no claim against the Buyer with respect to their receipt of such shares:

(Specify:)
1.4. (Final language:)
The Sellers shall have the right, subsequent to the Closing, to reallocate up to 10% of their shares to minority shareholders whose identity shall be notified to the Buyer; as to the shares so reallocated, two fiduciary arrangements may be concluded, one with each of the Sellers, so that at shareholder meetings, each of the Sellers shall ultimately have 25% of the voting rights. Such minority shareholders shall have no claim against the Buyer with respect to their receipt of such shares.
1.5. The Buyer is acquiring the Shares at the Closing pursuant to the ordinary and legal guarantees applicable in these matters and those terms and conditions set forth herein and in the Guaranty Agreement.
1.6. The Sellers, in consideration of the payment by the Buyer of the purchase price below, are delivering to the Buyer at the Closing, the transfer documents representing the 938 shares of the Company being sold by B 1and A, signed by each of them as of the date of the Closing, and are causing the Company to inscribe the Buyer as holder of both such 938 shares as well as the 1824 new shares in the Company’s share registry and shareholder accounts registry.

Article 2. Purchase price - payment

2.1. In consideration of the Company’s issuance and delivery to the Buyer of 1824 new shares of the Company, the Buyer is delivering to the Company at the Closing, proof of a bank transfer to the Company in the amount 1,530,000 Euros and 336 Euros in cash (which shall constitute 10 Euros per share and an issuance premium of 1,512,096 Euros). This sum is to be used to finance the Company’s activities in accordance with the Business Plan annexed hereto.

2.11. The Business Plan annexed hereto shows the possible outcomes for payment.

Article 3. Conditions of the Closing

The parties hereby acknowledge that the following conditions have been met to their satisfaction as of the date of the Closing:

3.1. The complete transformation of the Company from a société à responsabilité limitée into a société par actions simplifiée, including a certified copy of the original minutes of the meeting of the associates of the Company approving such transformation and the signature by the Sellers and the Buyer of new statuts for the Company in its SAS form, a copy of which are annexed hereto.
3.2. The receipt by the Buyer of: (a) proof of the issuance of the 1824 new shares on the Company’s stock registry and in the name of the Buyer in the Company’s shareholder accounts registry and (b) as to the 938 shares, signed share transfer documents from the Sellers and proof of the inscription of the transfer of such 938 shares in the Company’s registries.
3.3. The receipt by the Buyer of the annexed Guaranty Agreement signed by each of the Sellers.
3.4. Proof to the Buyer’s satisfaction as to the commercial value and the Company’s valid ownership of the patents and patent applications identified in the Guaranty Agreement. Such proof is described in further detail in the Guaranty Agreement and includes, in particular, documents reflecting the initial transfers of the inventors’ rights (and an agreement by the inventors that they have no further rights in and to such intellectual property and shall not make any claim against the Company or the Buyer relating thereto). The transfers of patents and patent applications from the liquidator of ________. To A Company, A Company to A and A to the Company are valid and irrevocable. It is understood that the transfers from _____ through to the Company have not been registered, but shall, immediately after the Closing, be registered in all jurisdictions in which the patents and patent applications have been filed.
(Final language: It is understood that the transfers of patents and patent applications from ____ to _____, from _____ to A Company, from A company to A and from the latter to the Company are in the process of being registered, which shall be completed as soon as possible after the Closing. The registration, which is understood to be the legal filing of the transfers of ownership, shall, if possible, be effected directly to the current legal owner, the Company.
3.5. Proof to the Buyer’s satisfaction as to the commercial value and the Company’s valid ownership of the know how, technology and other intellectual property identified in the Guaranty Agreement. Such proof is described in further detail in the Guaranty Agreement and includes, in particular, documents reflecting the initial transfers of the inventors’ rights (and an agreement by the inventors that they have no further rights in and to such intellectual property and shall not make any claim against the Company or the Buyer relating thereto) as well as a copy of all the documentation in the hands of the Company or the Sellers, which documentation shall be identified by appropriate Bates numbers. As concerns the “Soleau envelopes”, all documentation in support thereof shall be made available in order to enable the Company to re-file such “Soleau envelopes”, if possible and appropriate. All the documents referred to above are in the Company’s hands on the date of the Closing.
3.6. Proof to the Buyer’s satisfaction of the transfer to the Company of all the tangible assets identified in the Guaranty Agreement, all of which assets are physically present at the Company’s premises on the date of the Closing.
3.7. Written confirmations from A and A Company that neither shall have any claim against the Company or the Buyer for any consideration other than the symbolic Euro which A received in consideration of his transfer of all the intellectual property and the tangible assets to the Company.
3.8. Signature of the non-exclusive distribution agreement annexed hereto between the Company and the Buyer or another member of the buyer’s group. It is understood that the purpose of this distributorship is to formalize the joint business development activities between the buyer’s group and the Company in all regions where the distribution rights are granted. It is the intent of the Buyer that its _______ operations in the United Kingdom and its operations at ______ in the United Kingdom and at Chicago, Illinois in the United States, along with other regional sales groups as appropriate, shall take an active role in the market development and sale of products developed and produced by the Company.
3.9. Signature of the non-exclusive license agreement annexed hereto between the Company and the Buyer or another member of the Buyer’s group pursuant to which the Company grants the Buyer the right to manufacture and sell products in consideration of a royalty rate not to exceed (5%). It is understood that the license is only to be activated if: (a) the Company approves its activation upon request by the Buyer; (b) the Company elects to terminate its direct marketing operations; or (c) the Company grants a license to any third party. In the situation described in (b) above, the Buyer would seek to recover its investment through the practice of the license, the manufacture and pursuit of sales of the Company’s then existing products and the development and sale of additional products based upon the technology covered by the license.
All other decisions by the Company concerning licenses shall be taken by the President, after consultation with the General Manager chosen by the Sellers.
3.10. The parties have agreed herein and/or in the Company’s statuts the following with respect to the management of the Company and the disposition of shares of the Company:
(a) The statuts provide that the President of the Buyer shall appoint a _________ representative as President of the Company and that the President of the Company shall appoint one or more General Managers (one of which shall be a representative of the non-Buyer shareholders).
(b) The Buyer is appointing Mr. _________ today to the position of President and is causing Mr. _________to appoint today, as General Manager, Aloha Associates (which in turn is concluding a contract with Aloha Bob to have such position effectively assumed by her).
(c) The General Manager shall be responsible for day-to-day operations of the Company, under consultation with and direction from the President. While not agreeing to limit any of the power granted to the President of a société par actions simplifiée under French law, the parties acknowledge that the President’s primary responsibilities shall be to oversee the interests of the Buyer and of AIC, to act as the liaison between the Company and the Buyer in regards to the functional services to be provided as discussed in Article 3.8 above, and to help manage the distributor relationship and any other marketing, sales and R&D activities conducted between the Company and the __________ group. The Buyer reserves the sole right to appoint, remove or change the President of the Company. However, the Buyer shall consult with the Sellers with respect to any such decision.
(d) The parties have agreed upon the Business Plan annexed hereto as the initial strategic and operating plan for the Company’s business. The Company’s President and General Manager shall review such Business Plan every six months from the date hereof and make alterations where appropriate. Such alterations may take into account such trade-offs as between investing in further research and development and exploiting current products and distributing profits as a means of maximizing value. Any material alteration in the Business Plan shall be approved by at least seventy-five percent (75%) of the shareholders to be effective.
(e) The Buyer shall have the right - the Agreement in this respect constituting a unilateral promise to sell by the Sellers - for a period, commencing on January 1, 2006 and ending on December 31, 2007, to buy the remaining 50% of the Company’s shares for a total price equal to one half of four times (4x) the Company’s EBIT during the preceding twelve month period (EBIT meaning the net income or loss (résultat net) for the period increased by the corporate income tax and increased or decreased by financial costs and/or financial income).²¹
3.10. The signature of the Agreement between the Company and Aloha Associates annexed hereto pursuant to which latter, represented by Aloha Bob, shall act as full time General Manager of the Company as well as a “mirror image” agreement (except with respect to the amount of the remuneration) between Aloha Associates and Aloha Bob, satisfactory in form and substance to the Buyer, pursuant to which Aloha Associates shall make Aloha Bob available to the Company on a full-time basis.
3.11. The signature of the Consulting Agreement between the Company and Mr. B annexed hereto pursuant to which Mr. B shall make his services available to the Company 140 days per year.
3.12. The initialing of the annexed employment contracts with eight key employees, which contracts shall be finalized when appropriate in view of the anticipated subsidies from the ANPE.
3.13. The approval of this Agreement and all its annexes by the Company and the Board of Directors of the Buyer.
3.14. Opinion letter of patent counsel, as to the existence and validity of the patents and patent applications and the valid and irrevocable transfer thereof to the Company.
3.15. Opinion letter from French counsel regarding the existence of a sale to the Company of all the know how and technology concerning the transferred patents.
Article 4. Finders
Neither the Sellers nor the Buyer have incurred or shall incur any broker’s or finder’s or agent’s fees in connection with this Agreement, with the exception of a contractual consulting agreement between the Company and Voyou, Ltd., pursuant to which the latter is to be paid by the Company, as indicated in the cash flow and expense forecast for the first year. It is agreed that the consideration paid to Voyou Ltd. shall not exceed ______.
Article 5. Expenses
Expenses such as for legal and accounting fees incurred by the Company in connection with the acquisition and the transactions envisioned by this Agreement have been forecasted and are provided for in the proposed operating expense budget. The Sellers, personally, and not out of the assets of the Company, shall pay any and all legal, accounting or other expenses incurred appropriately and directly by them. The Buyer shall be responsible for payment of any registration tax on the sale of the shares purchased from the Sellers. The Company shall incur the registration expenses, fees and costs of the transformation from an SARL to a société par actions simplifiée, the increase of capital, the negotiation and drafting of the lease as well as the fees for the transfers of the patents and know how purchased by the Company from A and/or B , and any legal opinions given with respect thereto.
The Buyer shall reimburse the Company for the fees, costs and taxes relating to the transformation of the Company into a société par actions simplifiée
Article 6. Confidentiality
The Sellers and the Buyer shall keep totally confidential and shall not disclose the terms and conditions of this Agreement or the transactions envisioned herein or any documents or information exchanged among the parties to any third party nor make any public announcement relating thereto without the consent of the other party, except where such disclosure is required by law and then only after notice to the other party.
Article 7. Non-competition and non-solicitation agreements
7.1. The Sellers and Mr. B agree not to compete with the Company for a period of five years from the date hereof. In this respect, the Sellers and Mr. B shall not, either directly or indirectly, themselves or through any individual or legal entity, compete with the Company in the development, production and/or sale of _____________ and any other products developed, manufactured and/or sold by the Company, in any manner whatsoever, and as a general matter, shall not act on behalf of any enterprise, entity or business having an activity identical or similar to that mentioned above and, consequently, shall not work with or have any interest, of any nature whatsoever, in such activities and/or with respect to, such enterprises, entities or businesses, and, in particular, without limiting the generality of the foregoing;
-by the creation and/or holding of shares and/or any form of interest in an enterprise entity and/or business which corresponds to the above definition; and
- by engaging in any activity of any nature whatsoever for or on behalf of an enterprise, entity or business corresponding to the above definition.
The above undertaking shall apply to the countries of the OECD including the countries of Eastern Europe.
7.2. Except as may otherwise be agreed in writing by the parties hereto, the Sellers and Mr. B, with solidarity of responsibility among them, hereby agree not to solicit, in any manner whatsoever, directly or indirectly, for a period of five years from the date hereof, any client, supplier or agent of the Company whether they exist at the date of solicitation or at any time prior to the fifth anniversary hereof.
7.3. In the event of a breach of the above prohibition, the Buyer shall be entitled to take all legal means to cause such prohibited competition to cease and also to claim from the Sellers and Mr. B, jointly, as well as any other individuals or companies involved in the unfair competition, before any court with jurisdiction, an indemnity corresponding to the damages incurred.
Article 8. Applicable Law
The applicable law shall be the express provisions of this Agreement and the intent of the parties as expressed herein, as may be supplemented, if necessary, by principles of French law.
Article 9. Resolution of disputes
9.1. The parties shall endeavor to resolve amicably any and all disputes arising out of or in connection with this Agreement and undertake to meet as soon as either party advises the other of the existence of a dispute. If the parties are unable to meet or to settle their dispute amicably, such dispute shall be referred to arbitration pursuant to 9.2 below.
9.2. If at any time during the continuance of this Agreement, there shall be any question or dispute with respect to the construction, meaning or effect hereof, or any provision hereof, or arising out of or in connection herewith, or concerning the rights or obligations hereunder, which cannot be resolved amicably, such question or dispute shall be referred to: (a) a sole arbitrator to be selected by the parties hereto; or (b) failing agreement in selecting such arbitrator within seven (7) days, to a panel of three arbitrators, one to be appointed by the Sellers, one by the Buyer and the third by the two arbitrators so chosen. The arbitration shall take place in ________, France and shall be conducted in the English language.
9.3. The award rendered by such sole arbitrator or a majority of the three arbitrators, as the case may be, shall be final and binding on the parties and judgment upon such award may be entered in any court having jurisdiction.
Article 10. Good faith; further steps
The parties expressly agree to fulfill their obligations hereunder in good faith. Each party agrees to take or cause to be taken any and all further steps and to execute or cause to be executed any and all further documents as may be reasonably necessary to effect and carry out fully all the transactions contemplated herein.
Article 11. Amendment or waiver
Any amendment or waiver of any provision of this Agreement shall be in writing and shall be effective only in the specific instance for which it is given. No failure or delay on the part of any party in exercising any right hereunder shall operate as a future waiver or amendment.
Article 12. Notices
All notices, required or permitted to be given hereunder shall be in writing and shall be valid and sufficient if delivered in person against a receipt or sent by prepaid registered priority mail (return receipt requested) or via facsimile which shall be confirmed by such registered priority mail without undue delay, directed to the parties at the addresses set forth above or to such other address as a party may specify in a notice given in accordance with this Article.
Article 13. Entire agreement
This Agreement and the Guaranty Agreement annexed hereto and their respective annexes constitute the entire agreement and supersede any and all prior agreements of the parties with respect to the subject matter thereof. No amendments, alterations or waivers of any of the terms of this Agreement shall be binding unless the same shall be in writing and duly executed by both parties.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.
Signed in

On

In originals

6. Guaranty Agreement (for Acquisition of Shares)

GUARANTY AGREEMENT

Directory: FACULTY
FACULTY -> Dsci 3870: Management Science
FACULTY -> Handling Indivisibilities
FACULTY -> Course overview
FACULTY -> Curriculum vitae wei chen professor
FACULTY -> Digital image warping
FACULTY -> Samples of Elements Exam Question III contains All Prior Exam Qs III except
FACULTY -> 【Education&Working Experience】
FACULTY -> References Abe, M., A. Kitoh and T. Yasunari, 2003: An evolution of the Asian summer monsoon associated with mountain uplift —Simulation with the mri atmosphere-ocean coupled gcm. J. Meteor. Soc. Japan, 81
FACULTY -> Ralph R. Ferraro Chief, Satellite Climate Studies Branch, noaa/nesdis
FACULTY -> Unit IV text: Types of Oil, Types of Prices Grammar: that/those of, with revision

Download 0.79 Mb.

Share with your friends: