The Negotiation and Drafting of International Contracts Course of Mr. Robert Simpson
This GUARANTY AGREEMENT (the "Agreement"), is made and entered into this __ day of ________, by and among
Download 0.79 Mb.
|
- Navigate this page:
- Mr. B, an individual of French nationality, domiciled at __________________, France;
This GUARANTY AGREEMENT (the "Agreement"), is made and entered into this __ day of ________, by and among:Mr. A, an individual of ________ nationality, born in _________, on _____________, domiciled at ___________;andMr. B, an individual of French nationality, domiciled at __________________, France;(Mr. A and Mr. B being hereinafter referred to as the “Guarantors”); ____________, a French société anonyme with a capital of ___________ Euros and its registered office at ______________, France, and registered under RCS no. __________ (the “Beneficiary”). WITNESSETH: WHEREAS, the Company was created on _______, 2002, but has not really commenced its activity; as of the date hereof, it has no established balance sheet, has hired no employees, but represents that it is the owner of assets essentially comprised of patents and other intellectual property described in the Agreement for Sale of Stock of even date herewith. WHEREAS, pursuant to such Agreement for Sale of Stock of even date herewith, the Guarantors are selling or causing to be sold to the Beneficiary as of today, 50% of the capital stock (the “Shares”) of ____________ a French société par actions simplifiée with a capital of 37,000 Euros and its registered office at ___________________, France (hereinafter the “Company”); and WHEREAS, the obligation of the Beneficiary to purchase the Shares has been based on the truth and accuracy of each of the representations and warranties and the fulfillment by the Guarantors of each of the covenants and agreements hereinafter set forth; WHEREAS, it is agreed that any audit of the Company which the Beneficiary may have undertaken shall in no way diminish the scope of the guarantees given hereunder; NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto hereby agree as follows: Article 1. Representations and warranties of Guarantors The Guarantors hereby make the following representations and warranties, with joint responsibility (solidarité) among them, and without prejudice to the Beneficiary’s right to recission as provided in Article 1184 of the Civil Code: Corporate standing of the Company The Company has been validly transformed from a société à responsabilité limitée into a société par actions simplifiée and is validly in existence and able to conduct its business in compliance with its corporate purpose and all other legal and/or administrative requirements applicable to its type of activities. A certified copy of the resolution of the shareholders of the SARL and a report of the commissaire à la transformation with respect to its transformation into an SAS and the Company’s current statuts are annexed hereto. Shares All of the Company’s initial capital stock (3,700 shares with a par value of 1O Euros per share) has been validly authorized and issued and is fully subscribed for and paid. The Guarantors are the owners of all such shares. All of the additional capital stock (1824 shares with a par value of 10 Euros for share and an issuance premium of 1,512,096) being reserved to the Beneficiary shall be validly authorized and issued and, as of today, fully subscribed for. All of the Shares are free and clear of all liens and encumbrances whatsoever. Such Shares are not the subject of any contract giving rise to any change in beneficial ownership or to any mortgage or the like or any other restrictions affecting the free transfer thereof in any manner whatsoever, such as a promise of sale, preemptive or preferential rights or any other restrictions. Authority and power of Guarantors The Guarantors have the authority and power to carry out their obligations hereunder. They agree to take all further steps as may be necessary with respect to carrying out such obligations. Transfer of Shares of the Company The transfer of the Shares will not violate any law, regulation, norm or administrative or judicial decision or any provision of the Company’s statuts and/or result in a default under an agreement or loss of any rights whatsoever. To the extent that may be necessary, all authorizations or consents for the transfer of the Shares have been obtained. Business Plan In view of the fact that the Company in its SARL form was created in July 2002 and has not been actively engaged in business since its creation, the Shareholders are not providing any financial statements for the Company. The essential elements of the Company’s intended initial business operations are set forth in the February 2002 business plan annexed hereto (the “Business Plan”). Assets Real estate The schedule of real estate annexed hereto provides an exact and summary description of the lease for the building located at _________, France, which the Company intends to sign, with an indication of the terms and conditions of such proposed lease as well as a copy of such proposed lease, if available. No real estate is owned by the Company. Fixed assets The schedule of fixed assets (constructions) provides an exact and summary description of all fixed assets of which the Company is the concessionaire or lessee, with an indication in each case of the corresponding legal status. No fixed assets are owned by the Company. Material, equipment and furnishings The material, equipment and furnishings and other movable assets which are currently in the possession of Company are described in the schedule annexed hereto and are the property of the Company. The equipment attached to the premises and used in the conduct of the Company’s business can be returned to the lessor upon the termination of the lease. State of assets The Company’s fixed assets are in a normal state of repair and good working order and are fit to satisfy the needs of the Company’s activity. The office equipment is in working order, but will need to be serviced in order to insure proper operation. The laboratory and pilot production equipment are in good condition, but need to be serviced for proper operation. The costs envisioned have been budgeted for in the Business Plan annexed hereto. Additional equipment will be required and has been budgeted for in the forecast of operation and capital expenditures in the Business Plan. Intellectual property All the patents, patent applications and all the know how and technology used or proposed in the Business Plan to be used by the Company in any manner whatsoever (hereafter the “Intellectual Property”), which are described in a schedule of Intellectual Property annexed hereto, are owned by the Company and are valid and subsisting. It is understood that the transfers of ownership of the Intellectual Property from the liquidators of _______ (Canada) and ________ (France) to A Company from such company to A and from the latter to the Company have not yet been effectively registered. Such registrations can be effected without restriction or any other problem. There are no claims, demands or proceedings pertaining to any of the Intellectual Property. No third person, including any and all persons who may have contributed in any way to the development of any of the Intellectual Property has any interest of any nature whatsoever in any of the Intellectual Property. There are no contractual or legal restrictions whatsoever (other than generally applicable laws and regulations) on the manner in which any of the Intellectual Property may be used. A detailed list of documents in support of the Company’s rights to the Intellectual Property is set forth in Article 2.5 below Title to properties All the properties in the Company’s possession which are to be used in its business are set forth in an annexed schedule. All such properties are fully owned by the Company, free and clear of any liens, encumbrances or any other restrictions or charges of any nature whatsoever, except for one item, for which ________ Euros remains to be paid (such amount being budgeted in the Business Plan). Receivables, prepaid expenses, loans The Company has no existing receivables. All accounts reflected in the Business Plan as pre-paid expenses or deferred charges are properly attributable to the Company’s future operations. There are minor expenses incurred by personnel not yet appointed to their positions, but who have been supporting efforts to start operations. These expenses which have been budgeted in the Business Plan shall not exceed ___________. 1.7. Liabilities The Company has no undertakings, liabilities or obligations, whether or not accrued, including without limitation, any guarantee or security or any tax or labor liability, except: the obligation to pay a consulting fee of approximately _________ due to Voyou Ltd. for services rendered, but not yet paid; this fee and fees for potential additional services to be rendered during the next twelve months have been budgeted at __________; the obligation to pay the lessor of the Company’s premises in ________ a security deposit upon the signing of a lease, as to which discussions are currently underway; the fees of the statutory auditor with respect to the Company’s increase in capital, reserved exclusively for the Beneficiary; the fees of Mr. ____________, the commisaire à la transformation (_________ Euros); the fees of Sellers’ French counsel relating to the drafting of the corporate documents for the Company’s increase of capital as well as for the annual legal and tax retainer; and the expenses relating to the transformation: translation of the articles of Aloha Associuates for the Clerk of the Commercial Court (_______ Euros), filing with the Clerk (_______ Euros), commercial registry formalities (_______ Euros) and the filing of minutes of an extraordinary meeting of shareholders concerning the transformation (____ Euros). All indebtedness as reflected in the Business Plan and above can be reimbursed at any time without any penalty or indemnity whatsoever. At the date hereof, the Company not incurred any late charges or penalties with respect to any financial commitments it may have made. 1.8. Taxes and charges Taxes relating to the transformation of the Company from an SARL into an SAS have been paid in full. No other taxes or social charges of any nature whatsoever are due. In particular, the transformation of the Company from an SARL into an SAS has not led to the creation of a new legal entity and accordingly the taxes imposed on the liquidation of an SARL and the creation of an SAS are not due. As of the date hereof, the Company has made and filed all tax and social security declarations required by law. The Company has paid, when due by law and regulations, all taxes and social charges with respect to its activity. As concerns taxes and social charges, no late charge or penalty has been nor shall be assessed and there shall be no assessment for back taxes. 1.9. Authorizations and compliance with laws The Company has all necessary authorizations and permits to conduct its business, and in particular, is not subject to any obligation or restriction as concerns the protection of classified establishments and the protection of the environment. The Company has substantially complied with all laws, decrees and regulations actually in force or about to enter into force concerning its activities, its business or the envisioned sale of the Shares, including without limitation, all laws and regulations governing labor relations and social security. 1.10. Litigation There are no actions, suits or judicial proceedings pending or threatened against the Company and/or its shareholders, nor is there any known basis for such action, suit or proceeding. There is no contingent liability with respect to the protection of the environment. 1.11. Insurance The Company’s assets and responsibilities are currently insured with the _____ insurance company by A Company, and upon the signature of a new lease for the Company’s premises in France, a new insurance policy shall be signed between the Company and ________. A draft of such insurance policy is annexed hereto. 1.12. Employees There are no pending or threatened labor disputes directly or indirectly involving the Company, and the Company is not a party to any agreement or contract other than collective agreements which are applicable to it because of the nature of its business. A schedule of employees to be engaged by the Company as soon as practically possible after the date hereof, setting forth their positions, salaries and advantages is annexed hereto. A copy of the employment agreements to be signed between the Company and such employees is also annexed hereto. No employment agreements contain any clause conferring to any employee any particular advantage, except____________. 1.13. Shareholdings The Company does have any shareholding or interest in another company of any kind. 1.14. Contracts The Company is not currently bound by any contracts other than as set forth in 1.7 above. 1.15. Suppliers, clients and partners No potential suppliers, clients or other important business partners benefit from any advantage, which is not strictly in compliance with normal business practice. Annexed hereto is a schedule of principal suppliers and principal clients of the Company’s predecessor company. The only contract in force is with Voyou Ltd. as described elsewhere herein. There are potential sales commission contracts which agents used by the Company’s predecessor company which are all in compliance with normal business practice. 1.16. Directors and officers, bank accounts and financial agreements The Company’s only officer or director are: _______ who is currently serving as the Company’s President and who previously served as the sole Gérant of the Company in its SARL form; and Aloha Associates which is serving as General Manager. An identification of the Company’s sole bank account, which is with the _______branch of the Banque _________, is annexed hereto. The Company has no other bank accounts, credit facilities, guarantees, factoring or financial agreements or the like. 1.17. Absence of changes The Guarantors know nor have reason to know of any recent material change in its situation, assets, liabilities, commitments, business or property, other than changes in its ordinary course of business, the aggregate of which does not substantially affect the Company’s value. The Guarantors have no knowledge of any facts (other than general information relating to economic and commercial conditions, competition, the evolution of techniques concerned and any other similar elements), that are not described herein or in the schedules annexed hereto, which may have material adverse consequences on the Company’s business. Article 2. Schedules In support of the Guarantors' representations and warranties set forth in Article 1 above, the following Schedules shall be annexed hereto by the Guarantors: 2.1. Corporate documents of the Company: a. Certified copy of the original minutes of the meeting of the associates of the Company approving its transformation from an SARL to an SAS b. Report of the Company’s commissaire à la transformation with respect to its transformation into an SAS. c. Statuts of the Company d. Proof of filing of the transformation of the Company from an SARL into an SAS with the Clerk of the Commercial Court of _______ e. Certified copy of a resolution of the shareholders of the Company authorizing the increase in capital, reserved exclusively to the Buyer, and granting the President of the Company full power to effect such increase in capital f. Certified copy of extract from the Company’s stock registry showing the issuance of 1824 new shares of the Company to the Buyer Certified copy of signed share transfer documents from the Sellers to the Buyer for 938 of the Company’s shares and proof of the inscription of the transfer of such 938 shares to The Buyer in the Company’s registries 2.2. Business Plan 2.3. Schedule of real estate (lease) Schedule of material, equipment and furnishings Schedule of Intellectual Property: Proof of the Company’s valid ownership of the patents and patent applications identified in the Guaranty Agreement, including proof of the initial transfers of the inventors’ rights (and an agreement by the inventors that they have no further rights in such intellectual property and shall not make any claim against the Company or the Buyer relating thereto): a. Copies of originals of patents and applications from originals in the Canadian patent lawyer’s office Documents evidencing initial transfers of rights by inventors and any other persons having collaborated on the inventions covered by the patents and patent applications (employment contracts of employees with predecessor company) Original document of transfer of rights to patents and patent applications from Canadian liquidator to A Company Original document of transfer of rights to patents and patent applications from A Company to A Original of document of transfer of rights to patents and patent applications from A to the Company Proof of commencement of the registration process with respect to the transfers listed in c, d and e above in all countries in which such patents and patent applications have been registered Letter from Canadian patent attorney dated ____, 2002 Letter from Canadian patent attorney stating he has seen the originals of the patents and patent applications and opining: that _____ regularly acquired and became the valid owner of such patents and patent applications; and as to the regularity, validity and irrevocability of the chain of title from Mr. B and any other persons having collaborated on the inventions to_______, to the Canadian liquidator to A Company to A and to the Company). Letter from Sellers’ French counsel as to the regularity, validity and irrevocability of the transfers of the patents and patent applications from A Company to A and from the latter to the Company. Proof of the Company’s valid ownership of the know how, technology and other intellectual property identified in the Guaranty Agreement: a. Inventory of documents supplied by Mr. B Bates numbering of inventoried documents Attestation by the Guarantors as to the existence and availability to the Company of all the inventoried documents Original documentation with respect to the “Soleau envelopes” and the filings thereof Documents evidencing transfers of rights by inventors or persons having collaborated on the development of the know how, technology and other intellectual property identified in the Guaranty Agreement (employment agreements of employees with predecessor company) Waivers by the persons described in e above of any potential rights to any of the know how, technology and other intellectual property identified in the Guaranty Agreement Opinion letter from Sellers’ French counsel regarding the reality and validity of the transfer to the Company (and the absence of any potential claims from any third party) of all the know how and technology and the Company’s right to file new “Soleau envelopes” Letter from Mr. B to the Company renouncing all rights with respect to the patents and patent applications and the know how, technology and “Soleau envelopes”. 2.6. Schedule of rights to property 2.7. Schedule of insurance (draft insurance policy) 2.8. Schedule of employees to be engaged and employment agreements 2.9. Schedule of principal suppliers, clients and commercial partners of the Company’s predecessor 2.10. Schedule of the Company’s bank account All the representations and warranties contained in the Schedules shall be true and correct as of the date stated therein and the date of the transfer of the Shares. Article 3. Indemnification of Beneficiary 3.1. Indemnity The Guarantors indemnify the Beneficiary jointly (solidairement) with respect to any damage whatsoever which it may incur because of the inaccuracy any of the Guarantors’ representations and warranties hereunder. In this respect, the Guarantors undertake to reimburse the Beneficiary, up to the amount of the sales price for the 938 shares, an amount equal to the damage incurred. The damage shall be equal to the gross amount of the decrease in value of the assets and/or the increased liability related to the inaccuracy of any representation and warranty less any corresponding reduction of the Company’s income tax, increased by any other justifiable losses incurred by the Beneficiary. In the event of a claim hereunder, the Beneficiary shall notify the Guarantors, indicating the basis for the claim and the gross amount of the loss incurred in order to enable the Guarantors to protect their interests. Any claim shall be taken into account by the Guarantors if the registered letter required by Article 8 hereof is mailed prior to the expiration of the period of guarantee. In the event the Guarantors refuse to indemnify, for any reason whatsoever, they shall, within a period of fifteen days from the date of the receipt of the above-mentioned registered letter, notify their position to the Beneficiary, with an indication of the reason for such refusal. In the absence of such response, the Guarantors’ refusal shall no longer be taken into account. It is agreed that no claim shall be due by the Guarantors for any cumulative amount under _______ Euros. If the claims presented by the Beneficiary separately or one single occasion shall exceed ______ Euros, the indemnity shall be due starting from the first Euro. No claim by the Beneficiary shall be taken into account unless it is for a gross amount above ___________ Euros. 3.2. Period of indemnity The Guarantors’ obligation to indemnify the Beneficiary shall continue for a period of two years from the date hereof, except for claims relating to taxes and charges which may be presented until the expiration of the applicable statute of limitations. 3.3. Role of Guarantors The Guarantors, if they so desire, may intervene solely with respect to the protection of their own interests with respect to the guarantee hereunder. Article 4. 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 5. Resolution of disputes 5.1. 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 5.2 below. 5.2. 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 ________ language. 5.3. 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 6. 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 steps and to execute or cause to be executed any and all further documents as may be reasonably necessary to carry out all the transactions contemplated herein. Article 7. 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 8. 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 9. Entire Agreement This Agreement and the Agreement for Sale of Stock to which it is annexed 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 all 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 *** Consider the alternative language for the indemnity provisions negotiated in another similar acquisition: 3.1. Indemnity 3.1.1. Damages – Claim The Guarantors jointly indemnify the Beneficiary with respect to any damages whatsoever as defined below, having their origin prior to the date hereof, not having been the subject of a representation or having been the subject of an incomplete and/or inaccurate representation, having caused a reduction of the value of an asset and/or an increase of a liability which has not been taken into account in the Company’s accounts (hereinafter “Damages”), it being noted that the amount of such Damages shall be reduced by any corresponding tax benefit or increased by other losses incurred by the Beneficiary if it shall justify them. In this respect, the Guarantors undertake to reimburse the Beneficiary an amount equal to the Damages incurred, up to a maximum amount of thirty percent (30%) of the sales price. In the event of a claim hereunder, the Beneficiary shall send the Guarantors a registered letter, return receipt requested, indicating the basis for the application of the guaranty and the amount of Damages, along with supporting evidence (hereinafter the “Claim”). Any Claim by the Beneficiary shall be taken into account by the Guarantors and the corresponding indemnity shall be due, provided the Claim: a) be notified by no later than thirty (30) days from the Beneficiary’s knowledge of the facts and/or elements which are the basis for the Damages; and b) is mailed prior to the expiration of the guaranty period. Otherwise, the Beneficiary’s Claim shall no longer be allowed. In the event the Guarantors object to the application of their guarantee, for any reason whatsoever, they shall, within a period of thirty (30) days from the date of the Claim, notify their position to the Beneficiary, with an indication of the reason for such objection. Otherwise, the Guarantor’s objection shall no longer be allowed. 3.1.2. Limitations a) Exemption It is agreed that no Claim shall be due by the Guarantors to the Beneficiary as long as the total amount of Claims shall not exceed an exempted amount of fifteen thousand (15,000) Euros. If the Claims asserted by the Beneficiary separately or one single occasion shall be above such exemption, the indemnity shall be due only for the amount of the Claim(s) exceeding this exemption. b) De minimis No Claim by the Beneficiary shall be taken into account unless the Damages are for an amount above one thousand, five hundred twenty-four and forty-nine one-hundredths (1,524.49) Euros. c) Ceiling The payments made by the Guarantors hereunder shall not exceed, all items taken together, thirty percent (30%) of the sales price. 3.2. Period of guaranty The Guarantors’ obligation to indemnify the Beneficiary shall continue for a period of eighteen (18) months from the date hereof, except for Claims relating to taxes and social charges which may be presented until the expiration of the applicable statute of limitations. Role of Guarantors The Guarantors shall have the right, at their sole expense, to organize the defense, in the name of the Company, against any action or claim of a third party relating to a Claim. The Guarantors shall be authorized, in this context and upon their request, to conduct any negotiation or procedure in the first instance or on appeal. In addition, the Beneficiary undertakes and shall cause the Company to do the following: a) to take, at the request of the Guarantors, all steps necessary to avoid, resist or settle any situation which might give rise to a Claim, immediately or over time, and in this respect, manage any proceedings in the name of the Company, at the request and expense of the Guarantors; b) to authorize the Guarantors and their representatives to have access to, and make copies of, any of the Company’s files or registries, provided the Guarantors shall keep all such information confidential, except communications which are necessary with respect to such proceedings; c) to require from the Company’s personnel, the production of declarations and proof and to participate in any lawsuit or hearing which might produce such declarations or proof; provide all assistance necessary in order to permit the Guarantors to avoid, defend or settle any action, without such assistance giving rise to a billing to the Guarantors; and d) to take or cause the Company to take all steps necessary to reduce the amount of any loss relating to such actions or claims. 3.4. Payment of Claims 3.4.1. Claims of third parties The Beneficiary shall not be entitled to seek indemnification for Damages resulting from a claim against the Company by a third party unless it results in a recovery or decision definitively liquidated and paid by the Company or from a settlement duly approved by the Guarantors. The Guarantor’s liability with respect to any Claim shall be reduced by any amounts which have been or may be received or obtained by the Beneficiary or the Company from any third party liable, in whole or in part, for the situation or circumstances having given rise to such Claim (the Beneficiary undertaking to take or cause the Company to take all steps to pursue such third party). In the event that a sum is recovered in this respect after the Guarantors have indemnified the Beneficiary, the Beneficiary shall refund or cause the Company to refund to the Guarantors the lesser of the following two sums: a) the amount already paid by the Guarantors pursuant to this agreement; or b) the recovery made. 3.4.2. Tax effects Any indemnity which may be due with respect to a Claim shall be reduced by any tax benefit or any increase in tax deficit which would result from the existence of an expense, damage, loss or increase in charges having given rise to the Claim for the Company. As concerns the potential payment of back taxes, the latter shall be taken into account only for the net amount of the additional liability. In this respect, payments for back taxes for which the effect for the Company will only be temporary shall not be taken into account. The same shall be true, for example, for reserves provisionally considered to be non-deductible as well as any expense the deduction of which is postponed in time. In such a case, however, penalties, late charges and interest incurred by the Company shall be taken into account. 3.4.3. Exclusions The Guarantors shall not have any liability to the Beneficiary to the extent that a Claim: a) is or shall be compensated by an increase in assets, a reduction of liabilities or any other favorable event affecting the Company and resulting: from an elimination of a reserve in the Company’s accounts relating to the Company’s activities; from the payment to the Company or the Beneficiary of an insurance indemnification or from a third party in the context of a legal proceeding relating to the subject of a Claim; b) results from or is attributable to an act or omission of the Beneficiary or the Company after the Closing of the sale or more generally the subject of which has its origin after the Closing of the sale; c) results from a legislative or administrative text not yet in force on the date hereof or any change in tax rates and as to which the Guarantors shall have no information prior to the Closing. 3.4.4. Effect of a Claim Any sum paid by the Guarantors to the Beneficiary for a Claim shall be considered as constituting a revision of the purchase price for the Shares pursuant to the Agreement for Sale of Shares. 3.5. Protection of the Guarantors 3.5.1. The Beneficiary recognizes having entered into this agreement based upon the information and representations set forth herein and the documents and information which can be proved to have been communicated during the audit it has conducted of the Company and that it does not have knowledge, as of the date of entering into this agreement, of any fact or event which could give rise to any Claim whatsoever. 3.5.2. No Claim, except if it relates to additional Damages consecutive to Damages for which indemnification has made, shall be asserted as to one or another of the representations in this agreement, in the event that the fact or event upon which it is shall have been the subject of a Claim which shall have been satisfied with respect to another representation. 3.5.3. In the event that a Claim is asserted, the Beneficiary shall authorize counsel for the Guarantors to consult the Company’s books, registers and documents, so that the Guarantors can accept and, if appropriate, object such Claim with full knowledge. 7. List of Closing Documents (for Acquisition of Shares) 1. Agreement for Sale of Stock Guaranty Agreement (Representations, warranties and guarantees of assets and liabilities) Extract K-bis of the Company Certified copy of the original minutes of the meeting of the associates of the Company approving its transformation from an SARL to an SAS Report of the Company’’s commissaire à la transformation with respect to its transformation into an SAS and proof of the filing of the transformation with the Clerk of the Commercial Court of ________. Statuts of the Company (SAS) Certified copy of a resolution of the shareholders of the Company authorizing the increase in capital at the Closing, reserved exclusively to the Buyer and granting the President of the Company full power to effect such increase in capital at the Closing Certified copy of extract from the Company’s stock registry showing the issuance of 1824 new shares of AIC to the Buyer Certified copy of signed share transfer documents from the Sellers to the Buyer for 938 of the Company’s shares and proof of the inscription of the transfer of 938 shares to the Buyer in the Company’s registries Bank check from the Buyer to the Company in the amount of ___________ Euros and __________ Euros in cash; checks from the Buyer for ____________to each of A and Mrs. B Letter of resignation of Mr. _______ as President of the Company Letter from the President of the Buyer appointing _____________ as President of the Company Proof of the Company’s valid ownership of the patents and patent applications identified in the Guaranty Agreement, including proof of the initial transfers of the inventors’ rights (and an agreement by the inventors that they have no further rights in such intellectual property and shall not make any claim against the Company or the Buyer relating thereto): a. Copies of originals of patents and patent applications from originals Documents evidencing initial transfers of rights by inventors and any other persons having collaborated on the inventions covered by the patents and patent applications (employment contracts of employees with predecessor company; waivers of ______ and ________) Copy of transfer of rights to patents and patent applications from _______ to ________ Letter from Canadian liquidator concerning the transfer of rights to patents and patent applications from Canadian liquidator to A Company Original document of transfer of rights to patents and patent applications from A Company to A Original of document of transfer of rights to patents and patent applications from A to the Company Proof of commencement of the registration process with respect to the transfers listed in c, d, e and f above in all countries in which such patents and patent applications have been registered Letters from Canadian patent attorney dated , 2002 Letter from Canadian patent attorney dated , 2002 stating he has seen the originals of the patents and patent applications and opining: that ____ regularly acquired and became the valid owner of such patents and patent applications; and as to the validity and irrevocability of the chain of title from ______ to _______, from the Canadian liquidator to A Company, from A Company to A and from A to the Company, as well as the absence in Quebec of any conflicting filings which could affect the chain of title in any way. j. Letter from French counsel opining as to the existence of a sale of the patents and patent applications from A to the Company. Proof of the Company’s valid ownership of the know how, technology and other intellectual property identified in the Guaranty Agreement: a. inventory of documents supplied by Mr. B b. Bates numbering of inventoried documents c. Attestation by the Guarantors as to the existence and availability to the Company of all the inventoried documents Original documentation with respect to the “Soleau envelopes” and the applications relating thereto Documents evidencing transfers of rights by inventors or persons having collaborated on the development of the know how, technology and other intellectual property identified in the Guaranty Agreement (employment agreements of employees with predecessor company) (See 13b) Waivers by the persons described in e above of any potential rights to any of the know how, technology and other intellectual property identified in the Guaranty Agreement Opinion letter from French counsel regarding the validity of the transfer to the Company (and the absence of any potential claims from any third party) of all the know how and technology Letter from Mr. B to the Company renouncing all rights with respect to the patents and patent applications and the know how, technology and the “Soleau envelopes” Inventory of all the tangible assets (material, equipment and furnishings) identified in the Guaranty Agreement and attestation by the Guarantors that all such assets are physically present at the Company’s premises on the date of the Closing Written confirmations from Mr. 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 Mr. A received in consideration of his transfer of all the intellectual property and the tangible assets to the Company Non-exclusive Distribution Agreement between the Company and Buyer Group BV Authorization from Buyer Group BV for ________ to sign the Distribution Agreement Non-exclusive License Agreement between the Company and Buyer Group BV Authorization from Buyer Group BV for __________ to sign the License Agreement Business Plan dated _________ 2002 Agreement between the Company and Aloha Associates pursuant to which latter, represented by Aloha Bob (who shall also sign such Agreement), shall act as full time General Manager of the Company Consulting Agreement (in French) between the Company and Mr. B Initialing of employment contracts with eight key employees of the Company Copy of certified original of minutes of the Board of Directors of the Buyer authorizing its President to sign the Agreement for Sale of Stock and all its annexes and related agreements List of expenses as of the Closing date to be assumed by the Company and reimbursed by the Buyer 29. Additional documents to be annexed to the Guaranty Agreement: a. Lease for premises in France b. Company’s insurance policy c. List of principal suppliers, clients and commercial partners of the Company’s predecessor d. Schedule regarding the Company’s bank account(s) including bank signature papers reflecting agreed authorizations at appropriate levels 8. License Agreement International License Agreement (Check list for the international negotiator) 1. Parties 2. Whereas clauses 3. Essential definitions Products Patent Rights (patents and patent applications - specify in detail) Improvements (improvements, new patents) Trademark Rights Technical Information (know-how) (invention records, laboratory records and notebooks, research reports, development reports, experimental engineering reports, plant design and operation specifications, production equipment, raw material specifications and control methods). Territory - Exclusive or non exclusive or mixture? Net Sales Receipts Term - Initial period, renewal periods, tacit renewal? 4. Appointment of Licensor and Grant of Rights a. Appointment of Licensor - Exclusive or non- exclusive - Can the Licensor exploit the same rights in the Territory? Description of rights granted under the patents, technical information and trademarks c. Transferability of rights to other companies of the Licensor’s group? How to define such group (usually based on notion of control)? d. Right to have sub-licensees? e. Rights retained by the Licensor? f. Restrictions on Licensee? Duties of Licensee Acceptation of appointment by Licensee Representations as to the Licensee’s ability to perform Use of best efforts (or commercially reasonable efforts?) by the Licensee to make, use and sell the Products in the Territory. Penalty for lack of diligence? Provisions like these are especially necessary if there is no minimum royalty At its own expense? Any participation by the Licensor, e.g., as to marketing, furnishing standard technical and marketing documents, etc.? Licensee’s express recognition of the Licensor’s ownership of the Patent Rights, Trademark Rights and Technical Information? Obligation of Licensee to grant back to Licensor any patents, improvements, know-how, etc.? Compliance with all applicable laws and regulations (e.g., concerning the manufacture sale, use, packaging and labeling of Products) Obligations in the event of infringements? 6. Technical information Included or not included in the license? b. Disclosure to Licensee - How? Provision for present and future information c. Method of furnishing the technology (documents, language, training at the Licensor’s plants, inquiries, payment of expenses) d. Supplying of ongoing technical assistance during the term of the agreement e. Confidentiality f. Non-responsibility of the Licensor for manufactured by the Licensee 7. Infringements a. Infringement by Licensee Licensee to notify Licensor of any infringements in the Territory (by or against third parties) - Description of how to handle infringement by others and claims of others of infringement of their rights - Who will notify, defend and pay costs? Who will be in charge of any litigation? 8. Royalties and payments a. Details of calculation of royalties - Percentage of Net Sales Receipts? Requirements for minimum annual royalties? Rattrapage? Records - Obligation to keep true and accurate books and records Reporting of Net Sales Receipts (statements of earned royalties) - Annual, quarterly, monthly? Payment of royalties - Payments in advance? Provisions concerning taxes and withholding Audit of books and records by Licensor 9. Quality control a. Product specifications to be supplied by the Licensor b. Licensee to follow the Licensor’s product instructions c. Inspection and testing of Products by the Licensee d. Furnishing of samples to the Licensor e. Inspection of plant and processes by the Licensor f. Each party will notify the other of any major product problems and means of correction 10. Trademarks and Tradenames Licensor to assist Licensee re any necessary filing of Trademarks and Tradenames in the Territory. Licensee to obtain approval of Licensor re signs, labels, packaging, advertising, etc. Requirement of notification by Licensee on Products (that the Products are manufactured pursuant to a license agreement with Licensor) Licensee to have no rights to the Trademarks and Tradenames in the Territory except as Licensee under the license agreement 11. Confidentiality a. During the term of the agreement After the agreement - How long? Each party to impose confidentiality obligation on employees or others who may receive confidential information 12. Warranties and product liability No express warranties by the Licensee without the approval of the Licensor Licensor does not warrant the Licensee’s Products and will not be liable for breach of warranty or other product complaints 13. Defaults and remedies Liability for breach of any material provision of the contract - Definition of what specific elements each party considers as material (non-payment of royalties, bankruptcy of a party, a non-permitted assignment under the agreement, an attempted misappropriation by the Licensee of any rights granted under the agreement, etc.) Notice of breach to be given within certain time frame Cure period? Right to resort to remedy of anticipatory breach? Under what circumstances? Damages for breach of contract - Compensatory damages? Consequential damages (lost profits)? Liquidated damages? Mitigation of damages? 14. Termination a. Right to terminate - Under what circumstances (material breaches as defined)? b. Notice of termination Termination not to prejudice right to remedies including damages 15. Effect of expiration or termination a. Licensee to cease sale of Products - What to do with unsold Products – Licensee to sell or return? b. Return of confidential information c. Right of the Licensee to sell remaining stock for specified period of time in the event of the termination of the agreement? 16. Resolution of disputes National courts or arbitration? If arbitration, ad hoc or institutional? Other provisions concerning arbitration (number and choice of arbitrators, language of arbitration, place of arbitration, etc.) 17. Miscellaneous provisions a. Agreement binding on successors and assigns b. Assignability or non-assignability of agreement and/or rights and obligations under the agreement c. Failure to insist on performance does not constitute a waiver for the future Parties acting as principals and independent contractors (and not as principal and agent, partners or joint venturers) - One party cannot bind the other to third parties e. Most favored nation clause? f. Force majeure, hardship clauses? g. Good faith - further steps Applicable law Interpretation (headings and sections for convenience purposes only) Amendments - In writing? Notices under the agreement Partial enforceability Partial invalidity clause Execution in counterparts Language Expenses Entire agreement (“merger clause”) 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:
|