Exhibit 10.86
[CONFIDENTIAL TREATMENT REQUESTED]
[Certain confidential information has been omitted from the Agreement and filed
separately with the Securities and Exchange Commission pursuant to a request by
Registrant for confidential treatment pursuant to Rule 24b-2. The omitted
confidential information has been identified by the following statement:
"CONFIDENTIAL TREATMENT REQUESTED".]
Notarial Deed A. Prot. 1996/20
dated 17 February 1996 of the
Notary Public ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Basle
NOTARIAL DEED
-------------------------------------
PURCHASE AND ASSIGNMENT AGREEMENT
Negotiated in Basle, Switzerland on the 17th day of February 1996.
Before the notary public ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ with place of office in Basle
appeared today:
1. ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, born 8 August 1939, attorney-at-law, of German
nationality, domiciled at D-65812 Bad ▇▇▇▇▇,
2. ▇▇. ▇▇▇▇ ▇▇▇▇▇▇, born 17 July 1944, bio-chemist, of German nationality,
domiciled at D-35039 Marburg,
both acting not for themselves, but with a power of attorney for
BEHRINGWERKE AG, with an office at Marburg (Lahn), registered at the
commercial register of Marburg (Lahn) under HR B 1055, with notarial
confirmation of representation, an authenticated copy of which constitutes
APPENDIX A to this document;
3. ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, born 20 July 1947, attorney-at-law, domiciled at
D-60389 Frankfurt am Main, not acting for himself but
a) with a power of attorney for ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇,
with an office at Frankfurt am Main, with notarial confirmation of
representation, the original of which constitutes APPENDIX B to this
document;
2
b) with a power of attorney for CHIRON CORPORATION, with an office at
California, with notarial confirmation of representation, the original
of which constitutes APPENDIX C to this document.
The foregoing persons identified themselves to the notary public by presenting
valid official national identity cards or passports.
Such persons and the notary public declared that they all have sufficient
knowledge of the English language to follow the notarization, which, at the
request of all the parties, will be conducted in English.
Such persons confirmed that they do not wish this document to be translated into
the German language nor do they wish that a German translation of this document
be added as an annex to this document.
From a conversation with such persons, the notary public took evidence that each
of them has sufficient command of the English language to follow and to
understand the document here notarized.
The foregoing persons request that the notary public notarize the following:
3
PURCHASE AND ASSIGNMENT AGREEMENT
between
Behringwerke Aktiengesellschaft,
(hereinafter "Behringwerke")
- ON THE ONE SIDE -
AND
(1) 31. CORSA Verwaltungsgesellschaft mbH,
(to be renamed "Chiron Biocine GmbH")
(hereinafter "Buyer")
(2) Chiron Corporation,
(hereinafter "Guarantor")
- ON THE OTHER SIDE -.
(Behringwerke and Buyer are collectively hereinafter referred to as the
"Parties" or individually as the "Party", as the context requires.)
4
TABLE OF CONTENTS
Directory of Annexes 5
Preamble 6
1. Facts; Covenants 6
2. Sale and Assignment 7
3. Put and Call; Shareholders' Agreement 8
4. Purchase Price 9
5. Condition Precedent 12
6. Operating Lease Agreement 13
7. Behringwerke's Representation and Warranties 14
8. Use of Name 20
9. Buyer's Representation and Warranties 21
10. Cooperation after the Closing Date 22
11. Non-Competition 22
12. Confidentiality 23
13. Merger Control 23
14. Indemnification; Guarantee 24
15. Miscellaneous 24
5
DIRECTORY OF ANNEXES
Annex 1.4 (a) - Contribution Agreement
Annex 1.4 (b) - Partnership Agreement
Annex 3.4 - Shareholders' Agreement
Annex 4.6 - Investment Plan for 1996
Annex 4.7 - Terms and Conditions for Commission
Annex 7.1.16 - Third Party Consents Agreements
Annex 7.1.18 - Liens, Pledges, Usufructs and other Encumbrances
Annex 7.1.19 - Financial Statements
Annex 8 - Use of Name and Logo
Annex 11 - Hoechst Letter
6
PREAMBLE
A. Object of Behringwerke, a stock company (AKTIENGESELLSCHAFT) incorporated
under the laws of Germany, is, inter alia, the production and distribution
of pharmaceutical products for human and animal use.
B. Object of Buyer, a GmbH organized under the laws of Germany, is the
distribution of pharmaceutical products for human use.
C. The Parties propose to enter into a joint venture in the field of human
vaccines, pursuant to which Behringwerke will contribute its human vaccine
business (hereinafter the "Business") to a newly organized limited
partnership (hereinafter "VuCo GmbH & Co."). Buyer will purchase a 49%
interest in the limited partnership and Buyer will have an option to
purchase, and Behringwerke will have an option to require Buyer to
purchase, the remaining 51% interest.
NOW, THEREFORE, the Parties hereto agree as follows:
1. FACTS; COVENTANTS
1.1 Behringwerke is the sole shareholder of 32. CORSA Verwaltungsgesellschaft
mbH (hereinafter "VuCo GmbH") and is holding two shares with a nominal
value of DM 25,000 and DM 25,000 representing 100% of the stated capital
of VuCo GmbH (hereinafter the "Shares"). VuCo GmbH is registered at the
commercial register of Amtsgericht Frankfurt a.M. under HR B 40994.
1.2 Behringwerke is the sole limited partner (KOMMANDITISTIN) of VuCo GmbH &
Co.; application has been filed for registration at the commercial register
of Amtsgericht Marburg. Behringwerke's limited partnership interest will be
fully contributed pursuant to the Contribution Agreement as defined in
clause 1.4; an application has been filed to have registered as liability
amount of Behringwerke at the commercial register an amount of DM 70,000
(in words: Deutsche ▇▇▇▇ seventy thousand) (▇▇▇▇ GELEISTETE
KOMMANDITEINLAGE UND REGISTRIERTE HAFTEINLAGE).
7
1.3 Behringwerke is also the sole owner of Institut fur Produkttest und
Verbrauchsforschung GmbH. ("IPV").
1.4 Presently "IPV" is the sole general partner of VuCo GmbH & Co. Behringwerke
shall immediately after the date hereof cause VuCo GmbH to replace IPV as
general partner of VuCo GmbH & Co. and immediately after such replacement
Behringwerke shall execute, and shall cause VuCo GmbH & Co. to execute, the
Contribution Agreement attached as ANNEX 1.4 (a) ("the Contribution
Agreement") and the limited partnership agreement attached as ANNEX 1.4 (b)
(the "Partnership Agreement"), the latter with effect as of the Closing
Date and also to be entered into by Buyer.
2. SALE AND ASSIGNMENT
2.1 Behringwerke hereby sells to Buyer and Buyer hereby purchases from
Behringwerke from its share in VuCo GmbH with a nominal value of DM 25,000
(in words: Deutsche ▇▇▇▇ twenty-five thousand) a partial share with a
nominal value of DM 24,500 (in words: Deutsche ▇▇▇▇ twenty four thousand
five hundred) after split of such share in two shares with nominal values
of DM 500 (in words: Deutsche ▇▇▇▇ five hundred) and DM 24,500 (in words:
Deutsche ▇▇▇▇ twenty-four thousand five hundred). The transfer of the
purchased share shall have effect as of the Closing Date, subject to the
occurrence of all of the conditions at the Closing Date as defined in
clause 5.1. (The sold share in VuCo GmbH is hereinafter referred to as the
"GmbH Share".) From the Closing Date, Buyer shall be entitled to all
dividend rights and all other secondary rights of the GmbH Share.
2.2 Behringwerke hereby sells to Buyer and Buyer hereby purchases from
Behringwerke 49% of its limited partnership interests in VuCo GmbH & Co.
including 49% of all capital accounts and of any other rights Behringwerke
may have in VuCo GmbH & Co. (the "Limited Partnership Interest") with
economical effect as of the Closing Date subject to the occurrence of all
of the conditions at the Closing Date. Buyer shall be entitled to all
dividend rights and all other secondary rights of a limited partner of VuCo
GmbH & Co. with respect to the Limited Partnership Interest.
8
2.3 Behringwerke hereby assigns to Buyer with effect in rem as of the Closing
Date the GmbH Share and the Limited Partnership Interest, and Buyer accepts
such assignment from Behringwerke.
The effectiveness in rem of the assignment of the GmbH Share and the
Limited Partnership Interest shall in any case be subject to the condition
precedent of payment of the Fixed Cash Purchase Price and of the Lease
Compensation payable to Behringwerke pursuant to clauses 4.1 and 4.2 and
the other conditions of clause 5.1.
2.4 Behringwerke shall cause VuCo GmbH to consent to the split of the DM 25,000
share and to the transfer of the Limited Partnership Interest.
3. PUT AND CALL; SHAREHOLDERS' AGREEMENT
3.1 Behringwerke herewith grants to Buyer the option (the "Chiron Call Option")
to require Behringwerke to sell to Buyer all of the remaining shares of
Behringwerke in VuCo GmbH and all of the remaining limited partnership
interests in VuCo GmbH & Co. (the "Option Interests"). Buyer may exercise
the Chiron Call Option within each of the following periods: March 1998,
March 1999, March 2000, March 2001 (the "Call Option Periods"). For the
purpose of executing the Chiron Call Option Behringwerke hereby irrevocably
offers to the Buyer to sell the Option Interests within any of the Call
Option Periods on the terms and conditions set forth herein. Buyer may
exercise the Chiron Call Option by accepting the offer of Behringwerke by
notarial deed within each of the Call Option Periods, PROVIDED THAT, Buyer
gives a notice to Behringwerke 30 days before accepting the offer.
3.2 Buyer herewith grants to Behringwerke the option to require Buyer to buy
from Behringwerke the Option Interests (the "Behring Put Option").
Behringwerke may exercise the Behring Put Option within March 2001 (the
"Put Option Period"). For the purpose of executing the Behring Put Option
Buyer hereby irrevocably offers to Behringwerke to buy the Option Interests
within the Put Option Period on the terms and conditions set forth herein.
Behringwerke may exercise the Behring Put Option by accepting the offer of
Buyer by notarial deed within the Put Option Period, PROVIDED THAT,
Behringwerke gives a notice to Buyer 30 days before accepting the offer.
9
In case a bankruptcy proceeding or composition proceeding is commenced with
regard to the assets of VuCo GmbH or VuCo GmbH & Co., or the commencement
of such proceedings is rejected due to lack of assets, Behringwerke is
entitled to immediately exercise the Behring Put Option with a notice
period of thirty days, PROVIDED THAT such notice shall not become effective
if Buyer arranges that the continuation of VuCo GmbH and VuCo GmbH & Co. as
a going concern is secured within such notice period.
3.3 Subject to the condition that either the Chiron Call Option or the Behring
Put Option is exercised pursuant to clauses 3.1 or 3.2 above and subject to
the further condition that the payment of the Option Purchase Price
pursuant to clause 4.3 is made, Behringwerke hereby assigns to the Buyer
the Option Interests and the Buyer accepts such assignment. Behringwerke
represents and warrants that as of the effective date of such assignment,
it is the sole owner of such Option Interests and that the Option Interests
are fully paid, not repaid and free and clear of any encumbrances and not
subject to any restrictions on disposition, any preemptive rights, option
rights, rights of first refusal or similar rights, all with respect to
rights of third parties.
3.4 Buyer and Behringwerke herewith enter into the Shareholders' Agreement
attached as ANNEX 3.4 which governs the Parties' shareholder rights in VuCo
GmbH and VuCo GmbH & Co. for the time period until the exercise of the
Chiron Call Option or the Behring Put Option.
4. PURCHASE PRICE
4.1 The purchase price owed by Buyer for the GmbH Share and the Limited
Partnership Interest is DM 171,500,000 (in words: Deutsche ▇▇▇▇ one hundred
and seventy-one million and five hundred thousand) (hereinafter the "Fixed
Cash Purchase Price"). The payment of the Fixed Cash Purchase Price is due
and payable on the Closing Date.
4.2 In addition to the Fixed Cash Purchase Price, Buyer shall pay to
Behringwerke on the Closing Date 49% of the amount VuCo GmbH & Co. actually
receives as rent under section 3.1 of the Operating Lease Agreement (the
"Lease Compensation") entered into pursuant to the Contribution Agreement.
4.3 The purchase price owed by Buyer for the Option Interests is DM 178,500,000
(in words: Deutsche ▇▇▇▇ one hundred seventy-eight million and five hundred
thousand)
10
plus an amount equal to 51% of the Lease Compensation and plus an option
fee calculated on such amounts at a rate of 5.125 % p.a. (in words: five
and one eighth percent) compounded annually for the time period between the
Closing Date and the due date under this clause 4.3 (the "Option Purchase
Price"). Any dividends (ENTNAHMEN) received by Behringwerke from VuCo GmbH
or VuCo GmbH & Co., plus interest, if and to the extent appropriate, on
such amounts at a rate of 5.125 % p.a. (in words: five and one eighth
percent) compounded annually for the time period between receipt of such
dividend and receipt of payment under this clause 4.3 shall be credited to
the Option Purchase Price, if due.
The Option Purchase Price shall be due and payable within five days of the
date of the notarization of the acceptance of the Chiron Call Option or the
Behring Put Option, as the case may be.
4.4 Buyer shall make any payments owed under this clause 4 by wire transfer
free of cost until 11:00 h at the respective due date to the following
account of Behringwerke:
Commerzbank ▇▇ ▇▇▇▇▇▇▇
▇/▇ ▇▇. ▇▇▇ ▇▇▇▇ (▇▇▇/▇▇▇▇ ID-No 533 400 24)
or any other account as designated by Behringwerke.
4.5 If the Closing Date is deferred for the sole reason that Buyer did not pay
the full amount of the Fixed Cash Purchase Price and 49 % of the Lease
Compensation or if Buyer does not pay the Option Purchase Price when due,
then starting from such date at which the Closing Date otherwise would have
occurred or the Option Purchase Price was due, the respective amount owed
by Buyer shall bear interest until receipt of payment at a rate of 3-month
FIBOR plus 10 basis points p.a.
4.6 The Fixed Cash Purchase Price and the Option Purchase Price include an
amount of DM 35,000,000 (in words: Deutsche ▇▇▇▇ thirty-five million) as
consideration for the contribution of Stock in VuCo GmbH & Co. by
Behringwerke pursuant to the Contribution Agreement or the Operating Lease
Agreement and for investments in the Business which may be activated and
which are implemented by Behringwerke since 1 January 1996 (the "New
Investments"). The investments for 1996, as currently planned, approximate
DM 6,700,000 (in words: Deutsche ▇▇▇▇ six million seven hundred thousand)
and are shown in the investment plan attached as ANNEX 4.6 which
Behringwerke may alter at its discretion subject to this Agreement and
the Contribution Agreement at any given time. Behringwerke will consult
with Buyer from time to time regarding the implementation of
11
such plan and any amendments thereto. The Parties shall make an inventory
close to the Closing Date with respect to such Stock and the New
Investments. The Parties shall evaluate the Stock and the New Investments
considering generally accepted accounting principles in Germany and the
principle of balance sheet consistency. If the value of the Stock and the
New Investments as determined in accordance with the foregoing provisions,
exceeds DM 35,000,000, an amount of 49% of such excess amount shall be
paid by Buyer to Behringwerke within 4 weeks after the Closing Date. If the
value of the Stock and the New Investments as determined in accordance with
the foregoing provisions is lower than DM 35,000,000, an amount of 49% of
such shortfall shall be paid by Behringwerke to Buyer within 4 weeks after
the Closing Date. As from the Closing Date any such payment owed by Buyer
to Behringwerke, or by Behringwerke to Buyer, as the case may be, shall
bear interest at a rate of 3-month FIBOR p.a. compounded annually. The
remaining 51% of the balance shall be due and payable by Buyer to
Behringwerke, or vice versa, as the case may be, at the date of the payment
under clause 4.3, plus interest at a rate of 5.125% (in words: five and one
eighth percent) compounded annually for the time period between Closing
Date and receipt of such balance payment.
4.7 In addition to any purchase price payments hereunder, Buyer agrees to pay
or to cause VuCo GmbH & Co. to pay to Behringwerke a yearly commission
("Commission") on the sales of Buyer's vaccine products listed in ANNEX 4.7
in Germany calculated as [CONFIDENTIAL TREATMENT REQUESTED] of the excess
of sales as forecast in ANNEX 4.7. Any such Commission shall be payable
for each of the years through 2001, regardless of the date of exercise
of the Chiron Call Option or the Behringwerke Put Option, all further
regulated in ANNEX 4.7. To be clear: any such Commission received by
Behringwerke will not reduce the Fixed Cash Purchase Price and/or the
Option Purchase Price, if any.
4.8 Buyer cannot set off any claims including claims pursuant to clause 7 of
this Agreement, it may have against any payments under this clause 4 unless
the counterclaim is undisputed or non-appealable. The exercise of rights of
retention of Buyer, if any, is also excluded. The same applies to payment
obligations of Behringwerke pursuant to clause 4.6.
5. CONDITION PRECEDENT
5.1 The date of perfection (VOLLZUG) of the transactions contemplated in this
Agreement (the "Closing Date") is subject to the occurrence of each of the
following conditions:
12
5.1.1 VuCo GmbH & Co. is holding all official approvals for the
operation of the Business as currently conducted pursuant to the
ARZNEIMITTELGESETZ, GENTECHNIKGESETZ, TIERSCHUTZGESETZ and
BUNDESSEUCHENGESETZ;
5.1.2 the Operating Lease Agreement (cf. clause 6) has been terminated
with effect as of the Closing Date;
5.1.3 the Contribution Date pursuant to the Contribution Agreement has
already occurred;
5.1.4 the approval contemplated in Art. 7 of the Contribution Agreement
shall have been obtained and the respective other contracting
party referred to therein shall have consented to an assignment
of the contract described in ANNEX 7 of the Contribution
Agreement to VuCo GmbH & Co. (as VuCo GmbH & Co. will exist upon
purchase of the GmbH Share and the Limited Partnership Interest
by Buyer contemplated hereby); and
5.1.5 the necessary merger control approvals pursuant to clause 13 have
either been granted, regardless of whether subject to any
conditions, or the implementation of this Agreement cannot be
prohibited by the merger control authorities due to lapse of
time.
5.2 The Parties shall use their best efforts that the events stated in clause
5.1 will be fulfilled as soon as possible and they will promptly inform
each other of the occurrence of any event stated in clause 5.1. All
conditions shall be deemed to have occurred as soon as the Parties informed
each other in writing of such occurrence.
5.3 Until Behringwerke shall have obtained the necessary approval referred
to in clause 5.1.4, either party may initiate the following procedure by
written notice, which may not be given earlier than 60 (sixty) days after
the date hereof. If the condition precedent stated in clause 5.1.4 has not
been fulfilled within such 60 (sixty) days period, each Party shall be
entitled to terminate this Agreement, effective on five (5) days written
notice to the other Party, without any Party being obliged to pay or
entitled to receive any compensation by reason of such termination to or
from the other Party. Neither Party is entitled to terminate this Agreement
if Behringwerke agrees at its own discretion within such period to effect
a partial universal reorganization or other ways to reorganize in order to
satisfy such condition and to indemnify Buyer against the cost and expense
of any challenge regarding the effectiveness of such reorganization to
cause the succession of VuCo
13
GmbH & Co. to the contract described in Annex 7 of the Contribution
Agreement without the consent of the respective other contracting party.
5.4 This Agreement shall be terminated if Closing Date has not occurred by
October 31, 1996, unless mutually extended by the Parties.
5.5 On the Closing Date Behringwerke shall cause the managing director(s)
(GESCHAFTSFUHRER) of VuCo GmbH to resign from office and Buyer and
Behringwerke shall nominate a new managing director pursuant to the
Shareholders' Agreement. Buyer shall also render a declaration that it
waives all claims it or VuCo GmbH or VuCo GmbH & Co. may have against the
resigning managing director.
5.6 On the Closing Date, Behringwerke shall deliver to Buyer a receipt for the
purchase price received.
6. OPERATING LEASE AGREEMENT
The Operating Lease Agreement as provided for in the Contribution Agreement
shall in any case become effective and shall run until the Closing Date.
Behringwerke shall cause VuCo GmbH & Co. to agree to such effectiveness of
the Operating Lease Agreement.
7. BEHRINGWERKE'S REPRESENTATION AND WARRANTIES
7.1 Behringwerke represents and warrants in form of an independent guarantee
(SELBSTANDIGES GARANTIEVERSPRECHEN) as of the date of this Agreement and
the Closing Date, unless, otherwise stipulated and, excluding any further
claims, that:
7.1.1 it has all corporate-legal authorities to conclude and execute
this Agreement and the execution and implementation of this
Agreement have duly been authorized by all necessary corporate
actions, in particular by its supervisory and managing bodies;
7.1.2 assuming the necessary approvals referred to in clause 13 below
will be granted and, except for circumstances exclusively within
the sphere of Buyer, the execution, delivery and performance of
this Agreement by Behringwerke do not and will not
14
7.1.2.1 violate, conflict with or result in the breach of any provision
of the Articles of Association or GESCHAFTSORDNUNG of
Behringwerke,
7.1.2.2 conflict with or violate any law, regulations, order, judgment,
award, injunction, writ, decree or government order applicable to
Behringwerke, nor
7.1.2.3 require the consent of any third party including public
authorities other than the approvals referred to in clauses 5.1.1
and 5.1.4;
7.1.3 it is the sole owner of the fully paid in GmbH Share and of the
Limited Partnership Interest (hereinafter collectively the "VuCo
Interests") and is entitled to sell and transfer to Buyer the full
legal and beneficial ownership of the VuCo Interests, and Buyer will
own such interests
free and clear from any encumbrances and will thereby become the sole
owner of the VuCo Interests;
VuCo GmbH has a net equity (BILANZIELLES REINVERMOGEN - Section 266
III A HGB) in the amount of at least DM 50,000;
7.1.4 the VuCo Interests are not subject to any restrictions on disposition,
any preemptive rights, option rights, rights of first refusal or
similar rights of third parties;
7.1.5 the facts stated in clause 1 are true and correct;
7.1.6 no additional contribution obligations in cash or in kind
(NACHSCHUBPFLICHTEN) exist with respect to VuCo GmbH and/or VuCo GmbH
& Co.;
7.1.7 there are no voting trusts, stockholder agreements, proxies or other
agreements or understandings in effect with respect to the voting or
transfer of the VuCo Interests except as provided for in the articles
of incorporation of VuCo GmbH and the Partnership Agreement;
7.1.8 the VuCo Interests do not constitute the entire property of
Behringwerke within the meaning of sect. 419 of the Civil Code
(BURGERLICHES GESETZBUCH);
7.1.9 The articles of incorporation (GESELLSCHAFTSVERTRAG) of VuCo GmbH are
known to the Parties and will only be changed upon mutual consent;
15
7.1.10 ANNEX 1.4 (b) contains a true and correct copy of the Partnership
Agreement to be effective on or before the Closing Date;
7.1.11 VuCo GmbH has not conducted any business activities other than
administration as otherwise expressly contemplateed by this Agreement
and is not subject to rights or obligations stemming from other
business activities;
7.1.12 except for the JAHRESPRAMIENORDNUNG; ERFOLGSBETEILIGUNG, neither VuCo
GmbH nor VuCo GmbH & Co. is bound by any control, profit transfer or
other agreements of the type referred to in sect. 291, 292 ET SEQ. of
the Stock Corporation Act (AKTIENGESETZ), and no silent participations
(STILLE BETEILIGUNGEN), profit participating loans (PARTIARISCHE
DARLEHEN), profit participations of management or employees or other
similar obligations exist with respect to the profits of VuCo GmbH
and/or of VuCo GmbH & Co. except for the Operating Lease Agreement
(cf. clause 6);
7.1.13 sufficient insurance policies have been concluded and maintained to
secure against risk arising in connection with the business of VuCo
GmbH & Co. until the Closing Date; such insurance shall be continued
for the period of joint ownership, while Hoechst is holding indirectly
the majority in VuCo GmbH and VuCo GmbH & Co., unless VuCo GmbH & Co.
and/or VuCo GmbH decides otherwise;
7.1.14 all warranties and representations granted by Behringwerke under the
Contribution Agreement are true and correct, and Buyer is entitled to
claim those warranties on behalf of VuCo GmbH & Co.;
7.1.15 between the date of this Agreement and the Closing Date, the
Contribution Agreement will not be amended, the Business will be
conducted in the ordinary course and consistent with past practice,
and Behringwerke shall cause VuCo GmbH and VuCo GmbH & Co. not to
enter into any transaction outside the ordinary course of business
without the prior consent of Buyer. As amplification and not
limitation of the foregoing, VuCo GmbH and/or VuCo GmbH & Co. will
not:
7.1.15.1 make any loan to, guarantee any indebtedness of or otherwise incur any
indebtedness on behalf of Behringwerke or any third party or assume
any other unusual obligations;
16
7.1.15.2 redeem any of the capital or declare, make or pay any profit
distributions (whether in cash, securities or other property);
7.1.15.3 enter into any arrangement under or similar to the Transformation Law
(UMWANDLUNGSGESETZ);
7.1.15.4 purchase any assets or make any investments in excess of DM 50,000 (in
words: Deutsche ▇▇▇▇ fifty thousand), except as described in the
capital investment plan, without the prior written consent of Buyer;
Behringwerke will not hire new employees attributable to the Business without
the prior consent of Buyer; in case of replacement of leaving employees, such
consent of Buyer shall not be unreasonably withheld;
7.1.16 neither the execution, delivery and performance of this Agreement by
Behringwerke, the execution, delivery and performance of the
Contribution Agreement by Behringwerke, VuCo GmbH and VuCo GmbH & Co.,
nor the consummation of the transactions contemplated hereby and
thereby, will (i) violate or conflict with Articles of Incorporation
of Behringwerke or VuCo GmbH or the present partnership agreement of
VuCo GmbH & Co., (ii) subject to clause 13 violate or conflict with
any law, regulations, order, judgment, award, injunction, writ or
decree applicable to Behringwerke, VuCo GmbH or VuCo GmbH & Co., (iii)
subject to obtaining the third party consents with respect to the
contracts listed in ANNEX 7.1.16 (the "Third Party Consents"), violate
or conflict with, result in a breach of, or result in or permit the
acceleration or termination of or constitute a default under (whether
with notice or lapse of time or both) any agreement, instrument,
indenture, mortgage, lien, lease or other contract to which
Behringwerke, VuCo GmbH or VuCo GmbH & Co. is a party or by which any
of them or their property or assets is bound, provided such violation,
conflict, acceleration, termination of default individually or in the
aggregate would have a material adverse effect on the Business; (iv)
result in the creation of any lien, charge, or encumbrance on any of
the property or assets of the Business which individually or in the
aggregate would have a material adverse effect on the Business;
7.1.17 The Contribution Agreement completely and correctly identifies all
contracts with licensors, contracts with licensees, leases, employment
and labor agreements and other contracts relating to the Business
(other than contracts with an
17
annual payment obligation of no more than DM 50,000 and a term of less
than one year). Except as disclosed in such Annexes, neither VuCo GmbH
nor VuCo GmbH & Co. is a party or otherwise subject to (i) any
contract, agreement or instrument evidencing or relating to any
material amount of indebtedness for borrowed money or the deferred
purchase price of property, or any direct or indirect guarantee of any
such indebtedness or deferred purchase price, or (ii) any secrecy or
other agreement or any injunction, judgment, order or award that (x)
restricts the right of VuCo GmbH or VuCo GmbH & Co. to engage in any
place in any line of business or (y) would restrict the right of VuCo
GmbH or VuCo GmbH & Co. to engage in any place in any line of business
after the Closing Date;
7.1.18 VuCo GmbH & Co. will receive good and marketable title to the
intellectual property rights contributed pursuant to clause 3.1.1.1 of
the Contribution Agreement and to the inventory and other stock
contributed pursuant to clause 3.1.2 of the Contribution Agreement,
and will also have good and marketable title to, or a valid leasehold
interest in, the machinery, equipment and other fixed assets
contributed pursuant to clause 3.1.1.2 of the Contribution Agreement,
and except as expressly set forth in the Annexes to such clause or in
ANNEX 7.1.18, all such assets are free and clear of any liens,
pledges, usufruct, and other encumbrances;
7.1.19 to the best knowledge and belief of the management board (VORSTAND) of
Behringwerke and officers (PROKURISTEN) of Behringwerke attributable
to the Business, the financial statements contained in ANNEX 7.1.19
fairly present the financial position and results of operation of the
Business at the respective dates and for the respective periods to
which they apply;
7.1.20 Behringwerke has disclosed all facts and circumstances which are or
which can reasonably be expected to be material to Buyer;
7.1.21 Behringwerke, VuCo GmbH and VuCo GmbH & Co. each is in compliance in
all material respects with all laws, regulations, orders, judgments
and decrees of any court or governmental or administrative authority
applicable to the Business so that there will be no material
detrimental impact for the Business in future;
7.1.22 Since June 30, 1995, there has not been (a) any material adverse
change in financial condition, operations, business prospects or
properties of the Business; (b)
18
any acquisition or disposition of any of assets of the Business which
may have a material and adverse effect on the ability of VuCo GmbH &
Co. to conduct the Business as heretofore conducted; (c) any damage,
destruction or loss to any properties or assets of the Business which
may materially and adversely affect or impair VuCo GmbH & Co.'s
ability to conduct the Business in the manner heretofore conducted; or
(d) any other act or event outside of the ordinary course of business
which may materially and adversely affect or impair the ability of
VuCo GmbH & Co. to conduct the Business in the manner heretofore
conducted;
7.2 In case of a breach of any of the representations and warranties under
clause 7.1 the following applies:
7.2.1 Behringwerke is entitled, with respect to the warranted items, to
cure the breach. If Behringwerke fails to cure the breach within
a reasonable period of time, such period not to exceed three
months after Buyer has notified Behringwerke of the breach, or if
immediate action is necessary (GEFAHR IM VERZUG), Behringwerke
shall refund to Buyer the necessary amount spent by Buyer to
establish the warranted status and this shall be Buyer's sole
remedy.
7.2.2 Buyer may only ask for recovery based on a warranty claim or
on other claims connected therewith if the individual claim
exceeds [CONFIDENTIAL TREATMENT REQUESTED] (in words:
[CONFIDENTIAL TREATMENT REQUESTED]) and to the extent the
aggregate of all such individual claims exceeds [CONFIDENTIAL
TREATMENT REQUESTED] (in words: [CONFIDENTIAL TREATMENT
REQUESTED]). The total amount of the claims here mentioned may
not exceed [CONFIDENTIAL TREATMENT REQUESTED] (in words:
[CONFIDENTIAL TREATMENT REQUESTED]) (the "Warranty Cap"),
whereby any warranty claims of VuCo GmbH & Co. pursuant to the
Contribution Agreement must be included in calculating the
Warranty Cap and the corresponding deductible amounts. This
clause 7.2.2 shall not apply with regard to clauses 7.1.1,
7.1.2 and with regard to the net equity guarantee pursuant to
clause 7.1.3 second paragraph.
7.3 To the extent that Buyer can raise a warranty claim for the same reason
for which VuCo GmbH & Co. has raised and has got settled a warranty claim
under the Contribution Agreement, Buyer is excluded to raise its warranty
claim, notwithstanding that Buyer is entitled to claim those warranties on
behalf of VuCo GmbH & Co.
7.4 Any claims regarding cancellation (WANDLUNG), rescission (RUCKTRITT) or
challenge (ANFECHTUNG) of this Agreement or any other release from this
Agreement, including any
19
claim resulting from a liability due to breach of duty prior to contract
(CULPA IN CONTRAHENDO), are excluded unless Buyer cannot reasonably be
expected to adhere to this Agreement as a result of the breach of the
guarantee pursuant to clause 7.1.22. A breach of clause 7.1.22 by way of
example and not limitation is considered as occurred if VuCo GmbH & Co's
business or plant is subject to dislocation or massive destruction of
production facilities which after insurance proceeds would result in a
decline in value in excess of DM 52,500,000 (in words: Deutsche ▇▇▇▇
fifty-two million five hundred thousand). Such extraordinary right of
rescission has to be exercised within two weeks after the Closing Date.
Any further claims for damages because of a breach of one or more of the
guarantees or representations and warranties made pursuant to clause 7 or
any other liability of Behringwerke as well as claims based on breach of
duty prior to contract (CULPA IN CONTRAHENDO) shall be excluded.
7.5 Claims of Buyer pursuant to this clause 7 shall become time-barred fifteen
(15) months after the Closing Date with the exception of the warranty
granted under clause 7.1.14 which shall become time-barred as soon as the
respective warranty claims of VuCo GmbH & Co under the Contribution
Agreement become time-barred. The limitation period stops running if
claims are asserted in writing by Buyer against Behringwerke and if the
reasons on which such claim is based are reasonably identified. If
Behringwerke does not accept the claim within one month, Buyer must raise
the claim before court within a further period of three months pursuant to
clause 15.5 or it becomes time-barred.
8. USE OF NAME
Buyer has the royalty free, worldwide exclusive right to use in
perpetuity the name "Behring" as part of the firm of Buyer, VuCo GmbH
and VuCo GmbH & Co. and to use such name and the logo "▇. ▇. ▇▇▇▇▇▇▇"
as described in ANNEX 8, provided, however, that the name and logo may
only be used in connection with human vaccine products against
infectious diseases and only in connection with a clear indication of
the name of Chiron, all as also described in ANNEX 8. Such right to
use the name Behring and the logo shall be subject to the
non-exclusive right of Hoechst in India, Sri Lanka and Bangladesh and
subject to any third parties' rights including not fully controlled
affiliates.
20
The parties will rename VuCo GmbH and VuCo GmbH & Co. within 6 (six)
months after the Closing Date accordingly.
Behringwerke is prepared to discuss with Buyer on a case by case basis the
use of the name Behring in connection with the name Chiron outside of the
vaccine field for human health care products based on modern biological
technology (excluding Diagnostics) in as far as this is not in conflict
with legal aspects and own interests of Behringwerke AG, Hoechst AG, and
Centeon. All parties will guarantee that all uses will not damage the
reputation of the name Behring. All discussions hereto will be conducted
in good faith.
All uses of the name by either Party will be of high quality and
consistent with the preservation of the reputation and goodwill associated
with the name.
For the avoidance of doubt: Behringwerke shall remain the sole owner of
the trade name and trademark "Behring" and of the logo "▇. ▇. ▇▇▇▇▇▇▇",
and all use of such trade name, trademark and logo in accordance with the
aforesaid shall be governed by a "Trade Name and Trademark License
Agreement" to be entered into by the relevant parties.
9. BUYER'S REPRESENTATION AND WARRANTIES
9.1 Buyer represents and warrants in form of an independent guarantee
(SELBSTANDIGE ERFULLUNGSGARANTIE) excluding any further warranty claims
that:
9.1.1 it has all corporate-legal authorities to conclude and execute
this Agreement and the execution and implementation of this
Agreement have duly been authorized by all necessary corporate
actions, in particular by its supervisory and managing bodies;
9.1.2 assuming the necessary approvals referred to in clause 13 below
will be granted and except for circumstances exclusively within
the sphere of Behringwerke, the execution, delivery and
performance of this Agreement by Buyer do not and will not
9.1.2.1 violate, conflict with or result in the breach of any
provision of the Articles of Association or
GESCHAFTSORDNUNG of Buyer,
21
9.1.2.2 conflict with or violate any law regulations, order,
judgment, award, injunction, writ, decree or government
order applicable to Buyer, nor
9.1.2.3 require the consent of any third party including public
authorities.
9.2 In the event that any of the representations and warranties made in clause
9.1 is incorrect, Buyer shall indemnify Behringwerke for such damage
Behringwerke may suffer as a result thereof.
10. COOPERATION AFTER THE CLOSING DATE
10.1 Behringwerke and Buyer agree to cooperate after the Closing Date to achieve
a smooth and efficient transfer of the VuCo Interests to Buyer.
Behringwerke and Buyer shall initiate all acts necessary, or cause to be
initiated such acts, respectively, to implement this Agreement.
10.2 Behringwerke and Buyer shall, without undue delay, pass to each other any
payment, notice, correspondence, information or inquiry relating to the
Business which may be received by either of them after the Closing Date
and which the other is entitled to or is of concern to the other, taking
into account the terms and conditions of this Agreement. Clause 12 is
applicable to both Parties in this respect.
11. NON-COMPETITION
For a period of five years from the Closing Date, Behringwerke and
affiliated companies except for VuCo GmbH or VuCo GmbH & Co. shall refrain
from developing, producing, marketing, selling or otherwise distributing
human vaccine products in the world; for such purposes an affiliated
company of Behringwerke is a company in which Behringwerke either holds a
majority interest or which is controlled by Behringwerke. In the letter
attached hereto as ANNEX 11 Hoechst AG is undertaking a separate
non-compete covenant and other covenants with respect to this Agreement
(the "Hoechst Letter").
22
12. CONFIDENTIALITY
Except as otherwise provided in this Agreement, after the date of this
Agreement Behringwerke shall not use or disclose to third Parties any
information disclosed, transferred, assigned, licensed or otherwise made
available by or to Buyer hereunder and relating to the transfer of the
Business, unless (i) such information is needed by Behringwerke to
continue its commercial activities, (ii) is or becomes public knowledge
through no fault of Behringwerke, (iii) is passed to Behringwerke after
the Closing Date by a third party which is not under an obligation of
confidentiality, or (iv) has to be disclosed by Behringwerke pursuant to
law, judicial, or official order; in such case Behringwerke shall notify
Buyer in advance about the impending disclosure.
13. MERGER CONTROL
13.1 Immediately after the date hereof, the Parties' respective counsel shall
determine whether this Agreement is subject to the merger control by the
Commission of the European Union (hereinafter "Commission") pursuant to
the Regulation (EEC) No. 4064/89 of the Council of the European
Communities of December 21, 1989 on the Control of Mergers between
Undertakings. If so, they will notify the Commission on the merger
contemplated in this Agreement promptly, but not later than one week after
the date of notarization. Each party is obligated to provide all
information and addresses necessary and useful in connection herewith in a
timely, complete and correct manner and to take all steps necessary and
useful to achieve a positive outcome of the merger control proceeding.
13.2 All legal acts relating to the consummation of this Agreement are subject
to the condition precedent that either the Commission has found this
Agreement to be compatible with the common market or that after the
notification the prohibition of consummation shall be suspended for
whatever reason.
Both Parties shall only be released from the obligation resulting from
this Agreement in the event that the Commission should deny its approval
with respect to a transfer of the Business in total. In this context,
Buyer shall conduct all negotiations with the Commission within due course
and shall render to the Commission all additional details which shall
enable the Commission to approve this Agreement, even if under conditions;
furthermore, Buyer shall offer to the Commission or accept, respectively,
to implement all acts the Commission deems necessary and shall then
implement such acts accordingly.
23
13.3 In case that the Commission forbids the implementation of this Agreement
in its entirety, the Parties shall regard such decision as final unless
they agree otherwise until the decision becomes non-appealable.
13.4 In case the German Federal Cartel Office is in charge, clause 13.1 to 13.3
shall apply respectively.
14. INDEMNIFICATION; GUARANTEE
14.1 Buyer shall assume responsibility (SELBSTANDIGE ERFULLUNGSGARANTIE) by way
of fulfillment of all obligations of VuCo GmbH & Co. stemming from the
Contribution Agreement arising after the Closing Date.
Buyer shall furthermore indemnify Behringwerke against any liability of
Behringwerke as (former) limited partner after exercise of the Chiron Call
Option or the Behring Put Option stemming from any repayment of the
registered liability amount (HAFTEINLAGE) after the Closing Date.
14.2 The Guarantor shall assume responsibility (SELBSTANDIGEERFULLUNGSGARANTIE)
by way of fulfillment of all obligations of Buyer stemming from this
Agreement and its Annexes.
14.3 With respect to the Guarantor's obligation under clause 14.2 , it is
agreed that the Guarantor shall enter into such reasonable and appropriate
facilities as the Guarantor, Buyer and Behringwerke may from time to time
agree.
15. MISCELLANEOUS
15.1 This Agreement including the Annexes contains the entire understanding of
the Parties hereto in respect of the subject matter contained herein. No
agreements other than those expressly set forth herein exist between the
Parties.
15.2 Any modifications or amendments of this Agreement including this clause
15.2. shall be effective only if made in writing, unless the law provides
for a stricter form.
15.3 Each party shall pay its own costs and expenses (including costs and
expenses of its advisors) incurred in connection with this Agreement and
the execution of the transac-
24
tions contemplated hereby, except for the cost of notarization of this
Agreement, which shall be borne by Buyer. The expenses for the
cancellation of encumbrances not assumed by Buyer shall be borne by
Behringwerke. Any taxes or court expenses and cost in connection with the
merger control clearance which may arise from implementing this Agreement
shall be borne by Buyer excluding any taxes based on income or capital
gain which may arise upon the sale or transfer of the GmbH Share or the
Limited Partnership Interest from Behringwerke to Buyer, which taxes shall
remain the obligation of Behringwerke.
15.4 This Agreement shall be governed by and construed in accordance with the
law of the Federal Republic of Germany (without rules of conflict of
laws), unless the application of foreign law is compulsory.
15.5 Any disputes arising from, and in connection with, this Agreement shall be
finally decided by an arbitration court consisting of three arbitrators
following the rules of arbitration proceedings of the International
Chamber of Commerce (ICC). The arbitration court shall meet in Frankfurt
am Main. The language of the proceedings shall be German. The jurisdiction
of the ordinary courts shall be excluded except for summary judgment
(EINSTWEILIGER RECHTSSCHUTZ) and writs of execution. The arbitration court
may also decide about the validity of this document if necessary. The
costs of any arbitration shall be borne by the Parties pursuant to sect.
91 et seq. of the Civil Procedure Code (ZIVILPROZEBORDNUNG).
15.6 To the extent possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under the
applicable law. If any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions
of this Agreement. To the extent that a provision is ineffective or
invalid, it shall be replaced by an effective and valid provision which
comes as close as possible to the economic purpose of the ineffective or
invalid provision.
15.7 All notices and other communications under this Agreement shall be in
writing and shall be given or made to the following addresses, unless
specified otherwise in this contract:
25
To Behringwerke:
Behringwerke AG
attn. Vorstand
Postfach 1140
D-35001 Marburg
Fax: (49-6421) 39-4880
To Buyer/Guarantor:
Chiron Corporation
attn. President, Chiron Biocine
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇.▇.▇.
Fax: (▇-▇▇▇) ▇▇▇-▇▇▇▇
with a copy to General Counsel of Chiron Corporation, same address
15.8 It is agreed that Behringwerke shall cause the Behring/Armour joint
venture to continue to have distributed in Germany by VuCo GmbH & Co. the
products currently distributed by Behringwerke on behalf of such joint
venture on existing terms for so long as VuCo GmbH & Co. is jointly owned.
Further, it is agreed that the Parties shall cause VuCo
GmbH & Co. to continue the existing arrangements between Behringwerke
and Hoechst with respect to the distribution of human vaccine products
outside Germany at arm's length terms to be agreed upon for not less
than three years.
15.9 With respect to the Master Service Agreement as attached to the
Contribution Agreement the following is agreed:
As contemplated by sections 1.3 and 8.4 of the Master Service
Agreement, the Services are to be defined in the Annexes and are to be
divided into categories based upon the length of notice required to be
given to terminate any such service. Neither the Annexes nor the
division of the services into categories are complete as of the date
hereof. The parties agree to complete the Annexes and the
determination of which Services fall into which categories within six
months of the Closing Date. Notwithstanding the foregoing the Parties
agree that the Services will continue uninterrupted after the Closing
Date. Buyer agrees that Category I will in particular include Services
such as filling and packaging, production, logistics, materials
management, engineering, safety and environment.
15.10After signature of this Agreement, the Parties shall jointly issue a press
release. Neither party shall, without the prior consultation of the other,
issue any oral or written statement
26
to the press or the public regarding this Agreement, except as required by
law. This, in particular, applies with respect to the Purchase Price.
The present document with the annexes attached hereto was read aloud in the
presence of the appeared persons and signed by their own hands in my
presence as follows:
Basle, this 17th (seventeenth) day of February 1996 (nineteenhundred-
ninetysix).
ANNEX 1.4 (a)
to the Purchase Agreement
AGREEMENT
ON CONTRIBUTION TO CAPITAL
between
Behringwerke Aktiengesellschaft
▇▇▇▇-▇▇▇-▇▇▇▇▇▇▇-Strasse 76
35041 Marburg
- HEREINAFTER "BEHRINGWERKE" -
a n d
Behring Vakzine GmbH & Co.
▇▇▇▇-▇▇▇-▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
represented by 32. CORSA Verwaltungsgesellschaft mbH in its capacity as general
partner of VuCo GmbH & Co., with same place of business
- HEREINAFTER "VUCO GMBH & CO." -
(Behringwerke and VuCo GmbH & Co. are hereinafter collectively referred to as
the "Parties" or individually as the "Party", as the context requires.)
2
TABLE OF CONTENTS
Directory of Annexes . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Article 1 - Contribution . . . . . . . . . . . . . . . . . . . . . . . . 4
Article 2 - Consideration. . . . . . . . . . . . . . . . . . . . . . . . 4
Article 3 - Assets and Contracts to be Contributed . . . . . . . . . . . 5
Article 4 - Transfer of Ownership; Implementation of the Contribution. . 8
Article 5 - Takeover of Business; Periodical Delimitation. . . . . . . .10
Article 6 - Warranties . . . . . . . . . . . . . . . . . . . . . . . . .15
Article 7 - Contracts to be Contributed at a Later Date. . . . . . . . .18
Article 8 - Use of Name. . . . . . . . . . . . . . . . . . . . . . . . .18
Article 9 - Transition Period. . . . . . . . . . . . . . . . . . . . . .18
Article 10 - Operating Lease Agreement . . . . . . . . . . . . . . . . .19
Article 11 - Contracts to be Concluded . . . . . . . . . . . . . . . . .19
Article 12 - Tax Law . . . . . . . . . . . . . . . . . . . . . . . . . .19
Article 13 - Confidentiality . . . . . . . . . . . . . . . . . . . . . .19
Article 14 - Miscellaneous . . . . . . . . . . . . . . . . . . . . . . .20
3
DIRECTORY OF ANNEXES
Annex 3.1.1.1 (a) - Contributed intellectual property
Annex 3.1.1.1 (b) - Licensed intellectual property
Annex 3.1.1.1 (c) - License Agreement (in favor of VuCo GmbH & Co.)
Annex 3.1.1.1 (d) - License Agreement (in favor of Behringwerke)
Annex 3.1.1.2 - Fixed assets
Annex 3.1.3.1 - Contracts with licensors
Annex 3.1.3.2 - Contracts with licensees
Annex 3.1.3.3 - Other contracts with third parties
Annex 5.1.1 - Transferred employees
Annex 6.1.6 - Shop agreements
Annex 6.1.7 - Employment contracts with an annual remuneration
exceeding DM 300,000
Annex 7 - Contracts to be contributed at a later time
Annex 10 - Operating Lease Agreement
Annex 11.1 - Master Service Agreement
Annex 11.2 - Lease Agreement
4
PREAMBLE
Behringwerke and 32. CORSA Verwaltungsgesellschaft have formed VuCo GmbH & Co.
Pursuant to the Purchase and Assignment Agreement between Behringwerke and 31.
CORSA Verwaltungsgesellschaft mbH (to be renamed "Chiron Biocine GmbH") (the
"Purchase Agreement"), Behringwerke undertook the obligation to transfer its
human vaccine unit (the "Business") to VuCo GmbH & Co. as investment in kind.
NOW, THEREFORE, the Parties agree as follows:
ARTICLE 1 - CONTRIBUTION
1.1 As fulfillment of Behringwerke's obligation stemming from the Purchase
Agreement described in the Preamble, Behringwerke contributes to the
capital of VuCo GmbH & Co. the Business subject to the terms and conditions
stated hereinafter and consisting of the assets and contracts described in
Art. 3 with effect as of 1 April 1996, 00:00 h (the "Contribution Date").
1.2 VuCo GmbH & Co. accepts such contribution.
1.3 The value of the contribution of assets shall be determined pursuant to a
balance sheet per the Contribution Date (the "Contribution Balance Sheet"),
which shall include all assets and liabilities, if any, contributed hereby
and assessed at their respective book values of Behringwerke. The
Contribution Balance Sheet shall be prepared on a basis consistent with
that adopted for previous fiscal time periods and in any case in accordance
with the German generally accepted accounting principles ("GRUNDSATZE
ORDNUNGSGEMASSER BUCHFUHRUNG UND BILANZIERUNG / GOB"). The Contribution
Balance Sheet shall be testified by C&L Treuarbeit and the costs shall be
borne by Behringwerke.
ARTICLE 2 - CONSIDERATION
2.1 Behringwerke shall receive as consideration a fixed capital interest in the
capital account I kept by VuCo GmbH & Co. in the amount of DM 5,000,000 (in
words:
5
Deutsche ▇▇▇▇ five million) as per the Contribution Date (the Kapitalkonto
I - HAFTEINLAGE "Fixed Capital Interest").
2.2 To the extent that the Contribution Balance Sheet reflects a higher net
equity value than the Fixed Capital Interest, VuCo GmbH & Co. shall credit
the surplus in the capital account II of Behringwerke. The same shall apply
for any subsequent contribution of Stock at the termination date of the
Operating Lease Agreement (cf. Art. 3.1.2).
ARTICLE 3 - ASSETS AND CONTRACTS TO BE CONTRIBUTED
3.1 The assets and contracts to be contributed (hereinafter collectively
referred to as the "Vaccine Assets") consist of the following:
3.1.1 INTANGIBLE/TANGIBLE FIXED ASSETS
3.1.1.1 All copyrights, patents, trademarks, drug licenses and other
intellectual property rights and registrations and
applications for registration with respect to any of the
foregoing, trade and operational secrets, know-how,
procedures, formulas and other intangible assets which are
not covered by the aforementioned intellectual property
rights, incorporation of such assets and ancillary
documents, such as application documents for drug licenses,
descriptions, product specifications, production
documentation and examination certificates, as well as all
sales literature, customers- and suppliers-lists,
transferable operational permits and approvals, all of the
aforesaid predominantly relating to the Business. The
registered intellectual property rights and trademarks are
listed in ANNEX 3.1.1.1 (a), which is to be updated as of
the Contribution Date and thereafter as provided for in
Article 3.2, 3.3 and 3.4;
Not part of the intangible assets contributed hereunder are
the rights listed in ANNEX 3.1.1.1 (b) which is to be
updated as of the Contribution Date and thereafter as
provided for in Article 3.2, 3.3 and 3.4. Behringwerke
grants to VuCo GmbH & Co. upon the terms and conditions of
the License Agreement attached as ANNEX 3.1.1.1 (c) and
concluded herewith a royalty-free license to make use of
such rights. In return VuCo GmbH & Co. grants to
Behringwerke upon the terms and conditions of the License
Agreement attached as ANNEX 3.1.1.1 (d) and concluded
herewith a royalty-free license to make use of the rights
listed in ANNEX 3.1.1.1 (a) except for the trademarks.
6
3.1.1.2 All machinery, equipment, office equipment and other fixed
assets including software shown in the books of Behringwerke
as being in a cost center related to the Business as listed
in ANNEX 3.1.1.2 which is to be updated as of the
Contribution Date and thereafter as provided for in Article
3.2, 3.3 and 3.4.
3.1.2 STOCK
All inventories, finished and semifinished products, raw materials,
stocks, spare parts, information and promotional material and
supplies allocated to the Business as well as advance payments for
products previously sold but still held by Behringwerke, whereby
Behringwerke shall have the right to exclude such products from
inventory, all to be identified pursuant to a joint stocktaking close
to the Contribution Date (hereinafter "Stock"). Stock which is
produced under a license agreement is contributed and transferred
subject to the condition subsequent that the respective licensor
agrees to the transfer of the respective license agreement. In case
that the respective licensor does not agree to the transfer of the
respective license agreement, Behringwerke is free to sell such stock
to any third party. If the Operating Lease Agreement provided for in
Art. 10 becomes effective, no Stock shall be contributed by
Behringwerke to VuCo GmbH & Co. pursuant to this Art. 3.1.2.
3.1.3 CONTRACTS
The following contracts of Behringwerke as well as offers relating to
the Business:
3.1.3.1 contracts with licensors attached as ANNEX 3.1.3.1;
3.1.3.2 contracts with licensees attached as ANNEX 3.1.3.2;
3.1.3.3 other contracts with third Parties including, without
limitation, with Hoechst and its affiliates other than
contracts otherwise dealt with in this Contribution
Agreement and/or the Purchase Agreement, attached as ANNEX
3.1.3.3, such annex, however, is limited to contracts
covering annual payment obligations of more than DM 50,000
or having a term of more than one year and not containing
purchase orders in the ordinary course of business;
Behringwerke and VuCo GmbH & Co. shall use their best efforts to
obtain the consent of the respective contract partners for the
transfer to VuCo GmbH & Co. with-
7
out undue delay after signature of this Agreement. Behringwerke
herewith grants to VuCo GmbH & Co. a power of attorney to exercise
all rights stemming from such contracts with respect to the time
period between the Contribution Date and the date that such consent
has been granted. As from the Contribution Date, VuCo GmbH & Co.
shall hold Behringwerke free and harmless in respect of any
obligations stemming from such contracts.
3.1.4 All goodwill of and pertaining to the Business, including the right
to use the name "Behring" in accordance with the further provisions
of this Agreement.
3.2 As far as assets and contracts attributable to the Business are
inadvertently not mentioned or not included in the respective Annexes, the
Parties shall agree on a subsequent transfer or assumption in respect
thereof and the Parties shall accept such transfer or assumption without
consideration. Art. 7 remains unaffected.
3.3 As far as assets and contracts not attributable to the Business are
inadvertently included in the respective Annexes, the Parties shall agree
on a subsequent retransfer to or reassumption by Behringwerke thereof
without consideration.
3.4 The exact identity of such Vaccine Assets which are to be identified by
Annexes shall be governed exclusively by the Annexes updated as of the
Contribution Date. With respect to ANNEX 3.1.1.1(b) it is agreed that any
patent applications of Behringwerke filed with the relevant authorities
within a period of one year after the Closing Date as defined in the
Purchase Agreement shall be included in such annex and in the respective
annex of the License Agreement attached as ANNEX 3.1.1.1(c), all subject to
third parties' rights. With respect to ANNEX 3.1.1.1(a) it is agreed that
any patent applications of VuCo GmbH & Co. filed with the relevant
authorities within a period of one year after the Closing Date as defined
in the Purchase Agreement shall be included in such annex and in the
respective annex of the License Agreement attached as ANNEX 3.1.1.1(d).
3.5 The above provisions of Article 3.1.1.1 and 3.4 with respect to ANNEX
3.1.1.1(b) shall apply MUTATIS MUTANDIS to any patents and patent
applications of Hoechst AG arising out of an ongoing collaboration with
Behringwerke or relating to existing products of the Business, PROVIDED
THAT such right shall be granted on reasonable commercial terms, all
subject to third parties' rights and to the consent of Hoechst AG.
8
ARTICLE 4 - TRANSFER OF OWNERSHIP; IMPLEMENTATION OF THE CONTRIBUTION
4.1 Behringwerke and VuCo GmbH & Co. are in agreement that the transfer of
ownership of the Vaccine Assets from Behringwerke to VuCo GmbH & Co. shall
be effected as of the Contribution Date. VuCo GmbH & Co. is entitled to
take possession of the movable assets contributed to it under Art. 3.1.1.2
and of the Stock, if contributed. As far as immediate possession is not
possible, Behringwerke will possess the items with VuCo GmbH & Co.'s
approval and according to its instructions (BESITZMITTLER). As far as the
movable assets contributed according to Art. 3.1.1.2 are in the possession
of a third party on the Contribution Date, Behringwerke hereby assigns its
respective rights and claims it may have against such third party with
respect to such assets to VuCo GmbH & Co. with effect as of the
Contribution Date.
4.2 If, due to the retention of title or other security interests of third
Parties, Behringwerke has rights vested but not yet fully effective
(ANWARTSCHAFTSRECHTE) with respect to the Vaccine Assets, Behringwerke
hereby transfers these rights to VuCo GmbH & Co.
4.3 If and to the extent the transfer of ownership or assignment of other
rights relating to the Vaccine Assets to be contributed requires additional
acts which are not provided for in this Agreement, the Parties shall
execute such acts promptly.
4.4 Behringwerke and VuCo GmbH & Co. shall take all action necessary for the
implementation of this Agreement, including obtaining the necessary
approvals of public authorities for the transfer of existing permits or
applying for new permits and soliciting for necessary approvals of contract
partners or other third parties.
4.5 If and to the extent an assignment of contractual rights and duties cannot
be effected in relation to third parties, other than provided for in Art.
7, Behringwerke shall be obliged to exercise the respective contractual
rights and fulfill obligations in the interest of VuCo GmbH & Co. to the
extent possible. The same shall apply to the extent necessary and possible
with respect to the use of public permits. Behringwerke shall internally
place VuCo GmbH & Co. in the same economic position as it would be in if
such assignments had been valid and if that is not practicable it shall
indemnify VuCo GmbH & Co. against all damages associated therewith. VuCo
GmbH & Co. shall indemnify and internally place Behringwerke in the same
economic position with respect to the performance by VuCo GmbH & Co.
directly or indirectly of obligations of Behringwerke under such contracts,
as though Behringwerke had been discharged from any further liabilities in
respect
9
thereof, but not for any breach caused by the transfer to or assumption by
VuCo GmbH & Co. of such obligation.
4.6 As of the Contribution Date, all benefits and encumbrances (NUTZEN UND
LASTEN) related to the Business as well as the risk of accidental loss and
accidental deterioration of the Business shall pass to VuCo GmbH & Co.
4.7 If due, Behringwerke shall pay all public fees, charges and taxes relating
to the Business attributable to the time before the Contribution Date,
irrespective of whether such fees, charges and taxes have been levied at
the Contribution Date including taxes attributable to the portion of any
tax period which includes the Contribution Date from the beginning of the
tax period through the Contribution Date.
4.8 Behringwerke shall pay any and all taxes based on income or capital gain
imposed as a result of the contribution of assets to VuCo GmbH & Co.
pursuant to this Agreement.
ARTICLE 5 - TAKEOVER OF BUSINESS; PERIODICAL DELIMITATION
5.1 With respect to the assumption of employees, the following is agreed:
5.1.1 As of the Contribution Date, VuCo GmbH & Co. shall assume all rights
and obligations including pension entitlements, all pursuant to
Section 613a of the German Civil Code (BGB), arising from the
employment contracts of the employees of Behringwerke as listed in
Annex 5.1.1.
5.1.2 To the extent employees object to the transfer of their employment to
VuCo GmbH & Co., such employees shall work in the Business until the
earliest date at which such employments can be terminated, if
possible, and VuCo GmbH & Co. shall compensate Behringwerke for all
salaries and fringe payments and other costs related to continuing
employment. All costs, if any, in connection with the termination of
such employments shall be borne by Behringwerke. Behringwerke shall
give priority to investigate whether there are comparable employment
opportunities within Behringwerke, otherwise the employment of such
employees shall be terminated with effect as of the earliest date
possible.
10
Behringwerke has the right to nominate employees replacing objecting
employees with comparable qualification and salary and reasonably
acceptable to VuCo GmbH & Co. VuCo GmbH & Co. may decline to accept
such nominees, whether or not reasonably acceptable, but if a
reasonably acceptable nominee is rejected, then VuCo GmbH & Co. shall
bear all costs connected with the termination of the employment of
the objecting employee to be replaced and shall hold Behringwerke
free and harmless in this respect, unless Behringwerke decides at its
sole discretion to employ such objecting employee elsewhere in its
business. If the nominee is accepted, the provisions of this Article
5 shall apply mutatis mutandis. Starting with the date at which VuCo
GmbH & Co. employs any replacement employee, Behringwerke shall bear
all costs connected with an employee who has been replaced because
she/he objected to the transfer of her/his employment.
5.1.3 To the extent that VuCo GmbH & Co. has assumed hereunder claims of
employees pursuant to Section 613a of the German Civil Code (BGB) and
such claims are attributable to the time prior to the Contribution
Date, in particular claims for salary (including Christmas and
vacation pay), vacation claims, bonus claims, settlements (including
payments for employee inventions), life insurance premiums, and other
payments to be made in addition to the regular salary, Behringwerke
shall hold VuCo GmbH & Co. free and harmless therefrom.
5.1.4 To the extent that VuCo GmbH & Co. has assumed hereunder pension
obligations for employees pursuant to Section 613 a of the German
Civil Code (BGB) attributable to the time prior to the Contribution
Date, Behringwerke shall pay to VuCo GmbH & Co. an amount which
approximates full cost of the pension liability. Full costs should be
calculated in accordance with the provisions of FAS 87 using the
biometric tables of ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ (amended as follows: mortality
100%; disability 50%) and applying an interest rate of 7%, future
salary rate increase of 4% and a fluctuation rate of 15% until age
30, 10% until age 40, 5% until age 50, and 0% for 50+. The amount
shall be calculated on the basis of an actuarial report
(versicherungsmathematisches Gutachten) as of the Closing Date of the
Purchase Agreement, to be prepared at Behringwerke's cost. Upon
determination of the amount, such amount shall be payable within ten
banking days to VuCo GmbH & Co. but in no case prior to the Closing
Date of the Purchase Agreement.
11
5.1.5 Behringwerke shall hold VuCo GmbH & Co. free and harmless against any
taxes, social security contributions and contributions to workers'
social associations (Berufsgenossenschaften) to be paid for the
employees listed in Annex 5.1.1 or replacement employees transferred
to VuCo GmbH & Co. pursuant to the second paragraph of clause 5.1.2
attributable to the time period prior to the Contribution Date.
5.1.6 If any employees other than those listed in Annex 5.1.1 are
transferred to VuCo GmbH & Co. pursuant to Section ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ shall indemnify VuCo GmbH & Co. against all liabilities
and expenses arising from such employments. VuCo GmbH & Co. shall
terminate such employments as soon as legally possible. VuCo GmbH &
Co. shall take all actions necessary or advisable to minimize any
such liabilities or expenses of Behringwerke, including, without
limitation, the use in any legal proceeding of all legal remedies
available to it and the filing of appeals, all after due consultation
with Behringwerke. VuCo GmbH & Co. may enter into settlements,
provided, however, that it shall notify Behringwerke in writing in
advance of such intention to settle and that Behringwerke does not
object to such settlement within a period of three weeks after receipt
of such written notification. The aforementioned provision shall not
be applicable for the first seven employees who are attributable to
the Business and have not been listed in Annex 5.1.1 as updated on the
Contribution Date if and to the extent Behringwerke does not exercise
its right to nominate replacement employees and VuCo GmbH & Co.
employs such replacement employees or bears the severance costs. For
such seven employees this Art. 5.1 shall apply mutatis mutandis.
5.2 Notwithstanding anything to the contrary contained in this Agreement, VuCo
GmbH & Co. shall not assume any costs, liabilities or expenses, whether or
not related to the Business, other than (a) the pension obligations
expressly assumed under clause 5.1.1, and (b) contractual obligations of
the Business which accrue after the Contribution Date and which (i) are
related to the contracts set forth in ANNEXES 3.1.3.1, 3.1.3.2, 3.1.3.3 AND
7 or (ii) involve expenditures of less than DM 50,000 annually under
contracts with a term of less than one year, or (iii) are related to
purchase orders in the ordinary course of Business, or (iv) involve
expenditures in connection with the License Agreements provided for in
clause 3.1.1 (the "Assumed Liabilities"). With the exception of the Assumed
Liabilities, VuCo GmbH & Co. shall not assume or otherwise be responsible
for any liability or obligation of any nature of Behringwerke, whether or
not related to the Business, or any claims of such liability or obligation,
whether matured or unmatured, liquidated or unliquidated, fixed or
contingent, known or unknown, whether arising out of occurrences prior to,
at or
12
after the Contribution Date. Subject to the foregoing, VuCo GmbH & Co.
shall be responsible for any liabilities, obligations or damages incurred
or caused after the Contribution Date in connection with the operation of
the Business.
5.3 Notwithstanding anything to the contrary contained in this Agreement,
Behringwerke shall hold VuCo GmbH & Co. free and harmless from all taxes,
costs, liabilities and expenses related to the Business, in particular
those arising from the contracts contributed and transferred under Art.
3.1.3, attributable to the time prior to the Contribution Date. All costs,
liabilities and expenses related to the Business and which are attributable
to the time after the Contribution Date shall be borne by VuCo GmbH & Co.
For the avoidance of doubt: Any capital expenses with respect to
maintenance, repair and similar works incurred after the Contribution Date
are attributable to the period after the Contribution Date unless the
specific works causing the capital expense have been executed prior to the
Contribution Date; ongoing works shall be split up accordingly.
5.4 All rents, rates, gas, water, electricity, and telecommunication costs,
ancillary costs and other periodic expenditures relating to the Business
incurred before the Contribution Date shall be borne by Behringwerke unless
these are considered expenses related to a certain period after the
Contribution Date and would therefore be shown as appertainment of payments
pursuant to sec. 250 para. 1 Commercial Code (HGB) on the asset side. In
the latter case they shall be borne by VuCo GmbH & Co. On or around the
Contribution Date, the Parties will determine the uncharged consumption of
gas, water, electricity, heating and other charges as basis for the
apportionment of the expenses as stated above. To the extent that an exact
apportionment is not possible, these expenses will be estimated.
5.5 All incoming payments received before the Contribution Date relating to the
Business shall belong to Behringwerke except for incoming payments
attributable to the time after the Contribution Date which would be shown
as appertainment of payments pursuant to sec. 250 para. 1 Commercial Code
(HGB) on the liabilities side. All incoming payments received after the
Contribution Date relating to VuCo GmbH & Co. shall belong to VuCo GmbH &
Co. except for incoming payments if attributable to the time before the
Contribution Date. Receivables attributable to any period starting before
the Contribution Date and ending after the Contribution Date shall be split
between Behringwerke and VuCo GmbH & Co. pro rata.
5.6 Behringwerke and VuCo GmbH & Co. shall initiate all action necessary for
implementation of this Agreement and the takeover of the Business by VuCo
GmbH & Co.
13
5.7 Behringwerke and VuCo GmbH & Co. agree to cooperate after the Contribution
Date to achieve a smooth and efficient transfer of the Business to VuCo
GmbH & Co.
5.8 Behringwerke and VuCo GmbH & Co. shall, without undue delay, pass to each
other any payment, notice, correspondence, information or inquiry relating
to the Business which is received by either of them after the Contribution
Date and which the other is entitled to or which is of concern to the
other, taking into account the terms and conditions of this Agreement; Art.
13 is applicable to both Parties in this respect.
5.9 On or shortly after the Contribution Date or the termination of the
Operating Lease Agreement, Behringwerke shall hand over to VuCo GmbH & Co.
all documents, files, books etc., including the personnel files of the
employees assumed by VuCo GmbH & Co. pursuant to Art. 5.1, except for such
documents which Behringwerke must keep in its hands for legal reasons.
Behringwerke hereby permits VuCo GmbH & Co. to review and to take copies of
all retained documents to the extent necessary to continue the operation of
the Business. Documents of the Business shall remain Behringwerke's
property, as far as these are required to exercise rights and meet duties
arising from the period prior to the Contribution Date, in particular if
matters of taxation are involved.
5.10 Tax returns relating to the fiscal years prior to the Contribution Date
are to be prepared by Behringwerke at its costs; with respect to the
ongoing fiscal year of the Contribution Date, tax returns shall be jointly
prepared by Behringwerke and VuCo GmbH & Co. and the costs shall be shared
pro rata temporis. Behringwerke is entitled to designate the accountants
for testifying the balance sheets and to file any legal remedies against
levies and/or inspections of the tax authorities and social insurance
institutions, relating to the time period until the Contribution Date.
To the extent only VuCo GmbH & Co. can initiate the relevant action, it
shall do so upon request and as directed by Behringwerke at Behringwerke's
cost.
5.11 In case the Operating Lease Agreement provided for in Art. 10 becomes
effective, this Art. 5 shall not be applicable as of the Contribution
Date but as of such date the termination of the Operating Lease Agreement
becomes effective, save that Art. 5.1.1 is applicable at both dates.
ARTICLE 6- WARRANTIES
6.1 Behringwerke hereby warrants and represents in form of an independent
guarantee (selbstandiges Garantieversprechen), excluding any further claims
that on the date of signature of this Agreement and as of the Contribution
Date
14
6.1.1 the Vaccine Assets comprise all assets and contracts used in the
operation of the Business as currently conducted, other than (a) the
contract listed in Annex 7, which will be governed by the provisions
of Article 7, (b) certain patent rights which are also used in the
operation of Behringwerke's other business units, for which VuCo
GmbH & Co. will have a royalty-free license to use in accordance with
the provisions of clause 3.1.1.1, (c) certain machinery, equipment,
office equipment and other fixed assets which are also used in the
operation of Behringwerke's other business units; such fixed assets
will be operated on behalf of the Business by Behringwerke or its
sub-contractors in accordance with the provisions of the Master
Service Agreement, (d) certain real property, which will be leased to
VuCo GmbH & Co. pursuant to the terms of the Lease Agreement, and (e)
the contracts with Hoechst AG otherwise dealt with in this Agreement
and/or the Purchase Agreement. Except as expressly set forth in the
preceding sentence, upon contribution of the Vaccine Assets, VuCo
GmbH & Co. will have all assets and contracts required for the
continuation of the operation of the Business by VuCo GmbH & Co.,
other than public permits that are person-related;
6.1.2 it has full corporate power and authority to conclude and execute
this Contribution Agreement, and that the execution and
implementation of this Contribution Agreement have been duly
authorized by all necessary corporate actions, in particular by its
supervisory and managing bodies;
6.1.3 it is the sole owner of the respective intellectual property rights
sold and transferred under Art. 3.1.1.1, except as set forth
otherwise in the respective Annexes to Art. 3.1.1.1 or in Annex
7.1.18 of the Purchase Agreement and said rights are free and clear
of any liens, pledges, usufruct, and other encumbrances except as
stated in the respective Annexes to Art. 3.1.1.1 and all measures
necessary to maintain the protection of the intellectual property
rights have been taken and, to the best knowledge, it does not
infringe the rights of any other person;
6.1.4 it is entitled to contribute all assets as provided for under Art.
3.1.1.2 and that such assets are free and clear of all unusual liens,
pledges, usufruct, option and use rights or any other encumbrances or
rights of third parties, unless such encumbrances serve as security
for obligations assumed by VuCo GmbH & Co. or unless otherwise stated
in the respective Annexes;
15
6.1.5 all public permits object-related, but not person-related, and
necessary for the operation of the Business have been issued and
there are no indications that such permits or licenses will be
limited, recalled or revoked or become subject to new conditions
(Auflagen), with the exception of those mentioned in the respective
annexes;
6.1.6 with respect to the Business no shop agreements
(Betriebsvereinbarungen) have been concluded with the exception of
those mentioned in Annex 6.1.6;
6.1.7 except for those mentioned in Annex 6.1.7, it has not concluded any
employment contracts attributable to the Business with an annual
remuneration of more than [CONFIDENTIAL TREATMENT REQUESTED];
6.1.8 there are no judicial or arbitration proceedings pending or to the
best of its knowledge threatened with an amount in dispute of more
than DM 300,000 in the aggregate and, to the best knowledge of the
Vorstand of Behringwerke, it is not subject to any tax proceedings,
all only to the extent that there are facts involved that could have
a material detrimental impact on the Business;
6.1.9 the Business between 30 June 1995 and the date hereof has been
conducted in the customary manner, in particular, with respect to
investments and maintenance of the assets and Stocks and no material
assets outside the ordinary business have been acquired, sold,
pledged or otherwise encumbered;
6.1.10 all pension arrangements for the employees listed in ANNEX 5.1.1
and transferred to VuCo GmbH & Co. pursuant to Section 613 a Civil
Code (BGB) and the handling and documentation of respective rights
including payments thereunder are in accordance with the present
German legislation; except for those pension plans, no other
commitments have been made nor additional pension claims exist.
6.2 In case of breach of warranty under Art. 6.1 the following applies:
6.2.1 With respect to the warranted items Behringwerke is entitled to
establish the warranted status. If Behringwerke fails to establish
the warranted status within a reasonable period of time, such
period not to exceed three months after VuCo GmbH & Co. has
notified Behringwerke of the breach, or if immediate action is
necessary (GEFAHR IM VERZUG), Behringwerke shall refund to VuCo
GmbH & Co. the necessary amount spent by VuCo GmbH & Co. to
establish the warranted status and this shall be VuCo GmbH & Co.'s
sole remedy
16
6.2.2 VuCo GmbH & Co. may only ask for recovery based on a warranty claim
or on other claims connected therewith if the individual claim
exceeds [CONFIDENTIAL TREATMENT REQUESTED] (in words: [CONFIDENTIAL
TREATMENT REQUESTED]) and the aggregate of all such individual
claims exceeds [CONFIDENTIAL TREATMENT REQUESTED] (in words:
[CONFIDENTIAL TREATMENT REQUESTED]). The total amount of the claims
here mentioned may not exceed [CONFIDENTIAL TREATMENT REQUESTED] (in
words: [CONFIDENTIAL TREATMENT REQUESTED]) (the "Warranty Cap)",
whereby any warranty claims of Buyer pursuant to the Purchase
Agreement must be included in calculating the Warranty Cap and the
corresponding deductible amounts.
6.3 Beyond the remedies mentioned in this Art. 6, VuCo GmbH & Co. shall have no
further claims in connection with a breach of a warranty or corresponding
claims. In particular, to the extent legally possible, all claims of VuCo
GmbH & Co. going beyond the aforementioned remedies striving for additional
capital contribution, cancellation (WANDELUNG) or any other form of
rescission as well as a liability of Behringwerke based on breach of duty
prior to contract (CULPA IN CONTRAHENDO) are excluded to the extent legally
possible.
6.4 Claims of VuCo GmbH & Co. under this Art. 6 shall become time-barred
fifteen (15) months after the Closing Date of the Purchase Agreement. The
statute of limitation shall be interrupted if claims are asserted in
writing by VuCo GmbH & Co. against Behringwerke and if the reason on which
any such claim is based are reasonably identified. If Behringwerke does not
accept the claim within one month, VuCo GmbH & Co. must raise the claim
before court within a further period of three months; otherwise it becomes
time-barred.
ARTICLE 7- CONTRACTS TO BE CONTRIBUTED AT A LATER DATE
VuCo GmbH & Co. acknowledges that the assignment of rights and duties under the
contracts listed in ANNEX 7 requires the approval of the respective contracting
partner. Behringwerke shall seek to retain the approval for an assumption of
such contracts by VuCo GmbH & Co. If Behringwerke succeeds to obtain the
respective approvals, Behringwerke shall assign all rights and duties under such
contracts listed in ANNEX 7 to VuCo GmbH & Co. and the terms of this
Contribution Agreement shall be applicable to such contracts. If Behringwerke
cannot obtain the approvals, VuCo GmbH & Co shall not be entitled to any
compensation claims.
VuCo GmbH & Co. cannot assert any claims against Behringwerke based on this Art.
7.
ARTICLE 8- USE OF NAME
Use of the name "Behring" and the logo "▇. ▇. ▇▇▇▇▇▇▇" is governed by clause 8
of the Purchase Agreement.
17
ARTICLE 9- TRANSITION PERIOD
Between the date of signature of this Agreement and the Contribution Date
(hereinafter "Transition Period"), Behringwerke shall continue to operate the
Business in the ordinary course, consistent with prior practice and maintain it
as an active operation and shall notify VuCo GmbH & Co. without undue delay upon
becoming aware of any circumstances which (would) lead to a breach of the
warranties set forth in Art. 6. During the Transition Period Behringwerke shall
not employ additional employees attributable to the Business other than such
necessary to replace leaving employees without the prior consent of VuCo GmbH &
Co.
ARTICLE 10- OPERATING LEASE AGREEMENT
In the event that VuCo GmbH & Co. does not receive the necessary permits prior
to or on the Contribution Date and will thus not be able to continue the
operation of the Business, the Parties enter simultaneously herewith into the
Operating Lease Agreement attached as ANNEX 10.
ARTICLE 11- CONTRACTS TO BE CONCLUDED
11.1 Behringwerke and VuCo GmbH & Co. enter simultaneously herewith into
the Master Service Agreement attached as Annex 11.1.
11.2 Behringwerke and VuCo GmbH & Co. enter simultaneously herewith into
the Lease Agreement attached as Annex 11.2.
ARTICLE 12- TAX LAW
VuCo GmbH & Co. shall continue the valuation of assets as shown in the tax
balance sheet (STEUERBILANZ) of Behringwerke as of the Contribution Date.
Accordingly, no hidden reserves shall be disclosed and any goodwill shall not be
(newly) activated. The same applies for the commercial balance sheet
(HANDELSBILANZ) for which the book values of the VuCo Assets as determined in
the Contribution Balance Sheet are decisive.
18
ARTICLE 13- CONFIDENTIALITY
Except as otherwise provided in this Agreement, after the date of this Agreement
Behringwerke shall not use or disclose to third Parties any information
disclosed, transferred, assigned, licensed or otherwise made available to VuCo
GmbH & Co. hereunder and relating to the transfer of the Business, unless (i)
such information is needed by Behringwerke to continue its commercial activities
or in connection with the Operating Lease Agreement, (ii) is or becomes public
knowledge through no fault of Behringwerke, (iii) is passed to Behringwerke
after the Contribution Date by a third party which is not under an obligation of
confidentiality, or (iv) has to be disclosed by Behringwerke pursuant to law,
judicial, or official compulsion; in such case Behringwerke shall notify VuCo
GmbH & Co. in advance about the impending disclosure.
ARTICLE 14- MISCELLANEOUS
14.1 This Agreement including the Annexes contains the entire understanding
of the Parties hereto in respect of the subject matter contained
herein. No agreements exist other than those expressly set forth
herein.
14.2 Any modifications or amendments of this Agreement or of any provision
of this Agreement including this Art. 14.2 shall be effective only if
made in writing, unless the law provides for a stricter form.
14.3 All expenses incurred in connection with this Agreement and the
execution of the transactions contemplated hereby shall be borne by
Behringwerke.
14.4 This Agreement shall be governed by and construed in accordance with
the law of the Federal Republic of Germany, unless the application of
foreign law is compulsory.
14.5 To the extent possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under the
applicable law. If any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Agreement. To the extent that a provision is
ineffective or invalid, it shall be replaced by an effective and valid
provision which comes as close as possible to the economic purpose of
the ineffective or invalid provision.
19
Marburg, ______________ 1996
Behringwerke Aktiengesellschaft
by:
---------------------------- ------------------------------
VuCo GmbH & Co.
by:
---------------------------- ------------------------------
Annex 3.1.1.1(a)
to Contribution Agreement
[CONFIDENTIAL TREATMENT REQUESTED]
(5 Pages)
Annex 3.1.1.1(b)
to Contribution Agreement
[CONFIDENTIAL TREATMENT REQUESTED]
(5 Pages)
ANNEX 3.1.1.1 (c)
to the Contribution Agreement
LICENSE AGREEMENT
between
Behringwerke Aktiengesellschaft
Postfach 1140
D-35001 Marburg
(hereinafter "Behringwerke")
and
Behring Vaccine GmbH & Co.
(hereinafter "VuCo GmbH & Co.")
2
Content
-------
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. Granting of License. . . . . . . . . . . . . . . . . . . . . . . 3
2. Royalty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. Term.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. Approval by Contract Partners. . . . . . . . . . . . . . . . . . 5
5. Covenants by VuCo GmbH & Co. . . . . . . . . . . . . . . . . . . 5
6. Maintenance of Protected Rights. . . . . . . . . . . . . . . . . 5
7. Warranties by Behringwerke . . . . . . . . . . . . . . . . . . . 6
8. Further Developments . . . . . . . . . . . . . . . . . . . . . . 7
9. Assignment; Sub-Licensing. . . . . . . . . . . . . . . . . . . . 7
10. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . 7
3
PREAMBLE
Pursuant to the "Contribution Agreement" to which this License Agreement is an
annex, Behringwerke is contributing its human vaccine unit (the "Business") to
VuCo GmbH & Co. Some patents of, and actually used by, Behringwerke cannot be
transferred to VuCo GmbH & Co. as its property without restrictions because
these industrial property rights are also used by other units of Behringwerke.
In consideration hereof the parties agree as follows:
1. GRANTING OF LICENSE
1.1. Behringwerke is the holder of the patents and applications for
registration of patents listed in APPENDIX 1.1 (A) UNDER NO. 1, and
respective know-how (hereinafter the "Patents"). The term Patent
shall include continuations, divisionals, continuations-in-part,
reissues, priority applications, and corresponding foreign
counterparts. Furthermore, Behringwerke is co-owner of the patents
and applications for registration of patents listed in APPENDIX 1.1
(A) UNDER NO. 2 (hereinafter the "Co-owned/Acquired Patents and Co-
owned/Acquired Patents hereinafter collectively referred to as the
"Protected Rights").
1.2 Behringwerke hereby grants to VuCo GmbH & Co. subject to the terms
and conditions set forth hereinafter a license or sublicense, as the
case may be, under the Protected Rights to develop, manufacture, use
and sell human vaccine products. As to the Patents, such license
shall be worldwide and exclusive. As to the Co-owned/Acquired
Patents, the territory and degree of exclusivity shall be as
provided in the relevant agreement, if any, provided that if there
is no such agreement the license will be worldwide and exclusive,
all with respect to human vaccine products.
2. ROYALTY
The license under the Patents shall be royalty free. Royalty obligations
in respect of the development, manufacture, use or sale of human vaccine
products under
4
the Co-owned/Acquired Patents shall flow through directly to VuCo GmbH &
Co. in the amount specified in the relevant agreement, if any, with no
addition by Behringwerke. Payments shall be made directly to the relevant
licensor or co-owner. Fixed sum royalties, if any, shall be shared between
the parties in proportion to their respective use of such Protected Rights
as measured by net sales of covered products.
3. TERM
3.1 This License Agreement becomes effective at the Contribution Date or,
in case the Operating Lease Agreement becomes effective, upon
termination of the Operating Lease Agreement.
3.2 The licenses to the patents included in the Protected Rights shall
expire on a country-by-country basis with the last to expire Protected
Right. The licenses to know-how included in the Protected Rights
shall continue in perpetuity. The licenses to Co-owned/Acquired
Patents shall expire in accordance with the provisions of the relevant
license agreement.
3.3 VuCo GmbH & Co. may at any time terminate this License Agreement in
its entirety or for single Protected Rights with a termination period
of six months.
3.4 Behringwerke may also terminate this License Agreement in its entirety
or for single Protected Rights at any time with a termination period
of six months, PROVIDED THAT Behringwerke offers to VuCo GmbH & Co. to
transfer to VuCo GmbH & Co. without consideration all its rights and
obligations with respect to such Protected Rights to be terminated.
If VuCo GmbH & Co. accepts such an offer of transfer. VuCo GmbH & Co.
shall bear all costs incurred by the transfer. Furthermore,
Behringwerke may terminate this License Agreement as to the Protected
Right in question after respective warning and fruitless expiration of
a period of 30 days after the warning without observing any notice
period and without an offer to transfer any Protected Rights if VuCo
GmbH & Co. is in breach of any material clause hereunder and such
breach makes it unac-
5
ceptable for Behringwerke to continue this License Agreement.
Possible claims for damages by Behringwerke shall not be affected
hereby.
4. APPROVAL BY CONTRACT PARTNERS
To the extent the consummation of this License Agreement requires
approvals of third parties under the terms of the agreements for the
Co-owned/Acquired Patents, Behringwerke shall make every effort to
receive such approvals without delay after the date hereof. The
provisions of Article 4.5 of the Contribution Agreement shall apply
MUTATIS MUTANDIS to this License Agreement.
5. COVENANTS BY VUCO GMBH & CO.
Within the limits of statutory liability VuCo GmbH & Co. shall
indemnify and hold Behringwerke free and harmless against any claim
(other than claims which would be covered by Article 6.1.3 of the
Contribution Agreement, regardless of when such claims arise) which
may be brought against Behringwerke by any third parties arising out
of any use of the Protected Rights by VuCo GmbH & Co., except if such
damages are caused by willful acts of Behringwerke or its personnel or
any, licensee or its personnel.
6. MAINTENANCE OF PROTECTED RIGHTS
6.1 For the term of this License Agreement Behringwerke is obligated
to file, prosecute and maintain the Protected Rights, including
all interferences and oppositions thereto, at its own cost. In
case Behringwerke intends to abandon a Protected Right it shall
first make an offer of transfer to VuCo GmbH & Co. If the offer
will not be accepted within 30 days, it shall be deemed to be
rejected. In case of acception VuCo GmbH & Co. shall bear all
further costs. In case of rejection Behringwerke may abandon the
Protected Right. Behringwerke shall make every reasonable effort
to find a similar solution with respect to the Co-owned/Acquired
Patents.
6
6.2 In the event a third party infringes or may be infringing any of
the Protected Rights in the field of human vaccines, the parties
shall confer and consider whether any infringement proceedings
should be filed against such third party. Factors to be
considered include, without limitation, the extent of such
infringement, the identity of the infringer, the territory in
question, the strength of the patent in that territory, the
status of the patent in other territories, the likelihood of
success, cost and resource allocation, and other possible methods
of resolution. The parties will make every effort to mutually
agree whether to file any action, including if necessary
conferring with an independent third party, although in the event
the parties are unable to agree, the final decision will be made
by the owner of the patent at issue. If the parties decide to
proceed, VuCo GmbH & Co. shall control and bear the costs of such
proceeding, and shall retain any recovery. Behringwerke shall
reasonably cooperate with and assist VuCo GmbH in connection
therewith.
6.3 To the extent the use of a Co-owned/Acquired Patent is linked to
the exercise of an option, Behringwerke hereby authorizes VuCo
GmbH & ▇▇.▇▇ exercise such option in its own name or in the name
of Behringwerke in order to enable VuCo GmbH & Co. to use the
respective Protective Rights in accordance with this License
Agreement. Furthermore, Behringwerke undertakes to make all
necessary further declarations in order to enable VuCo GmbH & Co.
to exercise the rights under the respective options. VuCo GmbH &
Co. shall bear all costs incurred in connection with such
exercise of options, including any royalty, as long as
Behringwerke does not use the respective Protected Right. Art. 2
of this License Agreement shall be applicable.
7. WARRANTIES BY BEHRINGWERKE
Except as expressly set forth in the Contribution Agreement or the
Purchase Agreement, any warranties and representations of Behringwerke
are disclaimed.
7
8. FURTHER DEVELOPMENTS
Except as expressly set forth in clause 3.4 of the Contribution
Agreement, any new developments/improvements developed by Behringwerke
or VuCo GmbH & Co. in connection with the Protected Rights remain the
exclusive intellectual property of the respective party and are not
subject to any disclosure obligation. Each party is entitled to
register such new developments/improvements and to make exclusive use
of them for its own benefit.
9. ASSIGNMENT; SUB-LICENSING
9.1 VuCo GmbH & Co. may assign or otherwise transfer the rights and
obligations hereunder in whole or in part to a third party,
PROVIDED THAT such third party is to be bound by the terms and
conditions hereof and related hereto.
9.2 VuCo GmbH & Co. is entitled to grant sub-licenses but restricted
to the field of human vaccines.
9.3 Behringwerke is free to assign any or all of its rights and
obligations hereunder (i) in connection with a corporate
restructuring, (ii) to Hoechst AG or companies affiliated with
Hoechst AG or (iii) to an acquiror of the know-how and/or the
Patents and Co-owned/Acquired Patents.
9.4 Any assignment, sub-licensing and transfer of the Protected
Rights is only admissible if the respective recipient undertakes
to comply with the provisions of this License Agreement.
10. MISCELLANEOUS
10.1 Unless otherwise defined herein, all terms used herein shall have
the same meanings and definitions as in the Contribution
Agreement.
10.2 Unless otherwise specifically amended hereby all other terms of
the Contribution Agreement shall remain in full force and
effect.
8
10.3 To the extent possible, each provision of this License Agreement
will be interpreted in such manner as to be effective and valid
under the applicable law. If any provision of this License
Agreement is held to be prohibited by or invalid under applicable
law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this
License Agreement. To the extent that a provision is ineffective
or invalid, it shall be replaced by an effective and valid
provision which comes as close as possible to the economic
purpose of the ineffective or invalid provision.
10.4 Any modifications or amendments of this License Agreement or of
any provision of this License Agreement shall be effective only
if made in writing, unless the law provides for a stricter form.
10.5 This License Agreement is governed by the laws of the Federal
Republic of Germany.
10.6 The exclusive place of jurisdiction shall be Marburg.
Marburg, the_______________
Behringwerke AG by:
____________________________________ ______________________________________
VuCo GmbH & Co. by:
____________________________________ ______________________________________
APPENDIX 1. 1 (a)
to License Agreement in favor of VuCo GmbH
[CONFIDENTIAL TREATMENT REQUESTED]
(5 Pages)
ANNEX 3.1.1.1 (d)
to the Contribution Agreement
LICENSE AGREEMENT
between
Behringwerke Aktiengesellschaft
Postfach 1140
D-35001 Marburg
(hereinafter "Behringwerke")
and
Behring Vaccine GmbH & Co.
(hereinafter "VuCo GmbH & Co.")
2
CONTENT
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1. Granting of License. . . . . . . . . . . . . . . . . . . . . . .3
2. Royalty. . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
3. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
4. Approval by Contract Partners. . . . . . . . . . . . . . . . . .5
5. Covenants by Behringwerke. . . . . . . . . . . . . . . . . . . .5
6. Maintenance of Protected Rights; Exercise of Options . . . . . .5
7. Warranties by VuCo GmbH & Co . . . . . . . . . . . . . . . . . .6
8. Further Development. . . . . . . . . . . . . . . . . . . . . . .7
9. Assignment; Sub-Licensing. . . . . . . . . . . . . . . . . . . .7
10. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . .8
3
PREAMBLE
Pursuant to the "Contribution Agreement" to which this License Agreement is an
annex, Behringwerke is contributing its human vaccine unit (the "Business") to
VuCo GmbH & Co. Parts of the assets transferred to VuCo GmbH & Co. are also
patents which Behringwerke or affiliated companies intend to (further) use for
activities outside the Business.
In consideration hereof the parties agree as follows:
1. GRANTING OF LICENSE
1.1 Pursuant to the Contribution Agreement Vuco GmbH & Co. will become
owner of the patents and applications for registration of patents
listed in APPENDIX 1.1. (a) UNDER NO.1 (the "Patents") and
respective know-how and a coowner of the patents and applications
for registration of patents listed in APPENDIX 1.1.(a) UNDER NO. 2
(hereinafter the "Co-owned/Acquired Patents"). The term Patent
shall include continuations, divisionals, continuations-in-part,
reissues, priority applications, and corresponding foreign
counterparts. Furthermore, Behringwerke transferred to Vuco GmbH &
Co. rights and obligations relating to the license and option
agreements listed in APPENDIX 1.1 (b) (hereinafter the "Licensed
Patents"). (Patents, Co-owned/Acquired Patents and Licensed Patents
hereinafter collectively referred to as "Protected Rights").
1.2 VuCo GmbH & Co. hereby grants to Behringwerke subject to the terms
and conditions set forth hereinafter a license or sublicense, as the
case may be, under the Protected Rights to develop, manufacture,
use, and sell any product other than human vaccine products. As to
the Patents, such license shall be worldwide and exclusive. As to
the Licensed Patents and the Co-owned/Acquired Patents, the
territory and the degree of exclusivity shall be as provided in the
relevant agreement, if any, provided tha that if there is no such
agreement, the license will be worldwide and exclusive, all with
respect to any products other than human vaccine products.
VuCo GmbH & Co. shall have an option to obtain a non-exclusive
sublicense back from Behringwerke to such Protected Rights on
commercially
4
reasonable terms for uses outside the field of human vaccines, but
not for diagnostics.
2. ROYALTY
The license under the Patents shall be royalty free. Royalty
obligations in respect of the development, manufacture, use or sale of
products under the Licensed Patents and the Coowned/Acquired Patents
shall flow through directly to Behringwerke in the amount specified in
the relevant agreement, with no addition by VuCo GmbH & Co. Payments
shall be made directly to the relevant licensor. Fixed sum royalties,
if any, shall be shared between the parties in proportion to their
respective use of such protected rights as measured by net sales of
covered products.
3. TERM
3.1 This License Agreement becomes effective at the Contribution Date
or, in case the Operating Lease Agreement becomes effective, upon
termination of the Operating Lease Agreement.
3.2 The licenses to patents included in the Protected Rights shall
expire on a country-by-country basis with the last to expire
Protected Right. The licenses to know-how included in the
Protected Rights shall continue in perpetuity. The licenses to
Licensed Patents shall expire in accordance with the provisions
of the relevant license agreement.
3.3 Behringwerke may at any time terminate this License Agreement in
its entirety or for single Protected Rights with a termination
period of six months.
3.4 VuCo GmbH & Co. may also terminate this License Agreement in its
entirety or for single Protected Rights at any time with a
termination period of six months, PROVIDED THAT VuCo GmbH & Co.
offers to Behringwerke to transfer to Behringwerke without
consideration all its rights and obligations with respect to such
Protected Rights to be terminated. If Behringwerke accept such
an offer of transfer, Behringwerke shall
5
bear all costs incurred by the transfer. Furthermore, VuCo GmbH
& Co. may terminate this License Agreement as to the Protected
Right in question after respective warning and fruitless
expiration of a period of 30 days after the warning without
observing any notice period and without an offer to transfer the
Protected Rights, if Behringwerke is in breach of any material
clause hereunder and such breach makes it unacceptable for VuCo
GmbH & Co. to continue this License Agreement. Possible claims
for damages by VuCo GmbH & Co. shall not be affected hereby.
4. APPROVAL BY CONTRACT PARTNERS
To the extent the consummation of this License Ageement requires
approvals of third parties under the terms of the agreements for
Protected Rights, the parties shall make any effort to receive such
approvals without delay after the date hereof. If any required
approvals are not granted, the parties will make every effort to agree
on an alternative solution with equal economic results; VuCo GmbH & Co.
shall not be obligated to bear any costs thereby incurred.
5. COVENANTS BY BEHRINGWERKE
Within the limits of statutory liability Behringwerke shall indemnify
and hold VuCo GmbH & Co. free and harmless against any claim which
may be brought against VuCo GmbH & Co. by any third parties arising
out of any use of the Protected Rights by Behringwerke, except if
such damages are caused by willful acts of VuCo GmbH & Co. or its
personnel or any licensee or its personnel.
6. MAINTENANCE OF PROTECTED RIGHTS; EXERCISE OF OPTIONS
6.1 For the term of this License Agreement VuCo GmbH & co. is
obligated to file, prosecute and maintain the Patents and the Co-
owned/Acquired Patents, including all interferences and
oppositions thereto, at its own cost. In case VuCo GmbH & Co.
intends to abandon a Patent or a Co-owned/Acquired Patent it
shall first make an offer of transfer to Behringwerke. If the
offer will not be accepted within 30 days, it is deemed to be
rejected. In case of acception Behringwerke shall bear all
further costs. In case of rejection VuCo GmbH & Co. may abandon
the Protected Right. VuCo GmbH & Co. shall make any reasonable
effort to find a similar solution with respect to the Licensed
Patents.
6
6.2 To the extent the use of a Licensed Patent is linked to the
exercise of an option, Vuco GmbH & Co. hereby authorizes
Behringwerke to exercise such option in its own name or in the
name of VuCo GmbH & Co. in order to enable Behringwerke to use
the respective Protected Rights in accordance with this License
Agreement. Furthermore, VuCo GmbH & Co. undertakes to make all
necessary further declarations in order to enable Behringwerke to
exercise the rights under the respective options. Behringwerke
shall bear all costs, incurred in connection with such exercise
of options, including any royalty as long as VuCo GmbH & Co. does
not use the respective Protected Right. Art. 2 of this License
Agreement shall be applicable.
6.3 In the event a third party infringes or may be infringing any of
the Protected Rights other than in the field of human vaccines,
the parties shall confer and consider whether any infringement
proceedings should be filed against such third party. Factors to
be considered include, without limitation, the extent of such
infringement, the identity of the infringer, the territory in
question, the strength of the patent in that territory, the
status of the patent in other territories, the likelihood of
success, cost and resource allocation, and other possible methods
of resolution. The parties will make every effort to mutually
agree whether to file any action, including if necessary
conferring with an independent third party, although in the event
the parties are unable to agree, the final decision will be made
by the owner of the patent at issue. If the parties decide to
proceed, Behringwerke shall control and bear the costs of such
proceeding, and shall retain any recovery. VuCo GmbH & Co. shall
reasonably cooperate with and assist Behringwerke in connection
therewith.
7. WARRANTIES BY VUCO GMBH & CO.
Any warranties and representations of VuCo GmbH & Co. are disclaimed.
7
8. FURTHER DEVELOPMENT
Except as expressly provided in Art. 3.4 of the Contribution Agreement,
any new developments/improvements developed by Behringwerke or VuCo GmbH
& Co. in connection with the Protected Rights remain the exclusive
intellectual property of the respective party and are not subject to any
disclosure obligation. Each party is entitled to register such new
developments/improvements and to make exclusive use of them for its own
benefit.
9. ASSIGNMENT; SUB-LICENSING
9.1 Behringwerke shall not assign or otherwise transfer the rights
and obligations hereunder to a third party without the prior
approval of VuCo GmbH & Co. In case Behringwerke sells its
business operations or part thereof for which the Patents and
Licensed Patents are needed, VuCo GmbH & Co. shall not withhold
such approval, unless for good reason. In any case, Behringwerke
may transfer all its rights and obligations under this License
Agreement to Hoechst AG or any company affiliated with Hoechst AG
pursuant to Sec. 15 et seq. stock corporation act (AKTIENGESETZ)
without the approval by VuCo GmbH & Co.
9.2 Behringwerke is entitled to grant sub-licenses, with the
exception of the production of human vaccines.
9.3 VuCo GmbH & Co. is free to assign any or all of its rights and
obligations hereunder (i) in connection with a corporate
restructuring, (ii) to Chiron Corporation or companies affiliated
with Chiron Corporation or (iii) to an acquiror of the know-how
and/or Protected Rights.
9.4 Any assignment, sub-licensing and transfer of the Protected
Rights is only admissible if the respective recipient undertakes
to comply with the provisions of this License Agreement.
8
10. MISCELLANEOUS
10.1 Unless otherwise defined herein, all terms used herein shall have
the same meanings and definitions as in the Contribution
Agreement.
10.2 Unless otherwise specifically amended hereby, all other terms of
the Contribution Agreement shall remain in full force and effect.
10.3 To the extent possible, each provision of this License Agreement
will be interpreted in such manner as to be effective and valid
under the applicable law. If any provision of this License
Agreement is held to be prohibited by or invalid under applicable
law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this
License Agreement. To the extent that a provision is ineffective
or invalid, it shall be replaced by an effective and valid
provision which comes as close as possible to the economic
purpose of the ineffective or invalid provision.
10.4 Any modifications or amendments of this License Agreement or of
any provision of this License Agreement shall be effective only
if made in writing, unless the law provides for a stricter form.
10.5 This License Agreement is governed by the laws of the Federal
Republic of Germany.
10.6 The exclusive place of jurisdiction shall be Marburg.
9
Marburg, this _____th day of _______________________________ 1996
Behringwerke AG
by:
---------------------------------- --------------------------------------
VuCo GmbH & Co.
by:
---------------------------------- --------------------------------------
Appendix 1.1(a)
to License Agreement in favor of Behringwerke
[CONFIDENTIAL TREATMENT REQUESTED]
(4 Pages)
Appendix 1.1(b)
to License Agreement in favor of Behringwerke
[CONFIDENTIAL TREATMENT REQUESTED]
(1 Page)
Annex 3.1.1.2
to Contribution Agreement
This annex 3.1.1.2 is to be prepared by Behringwerke at the time of the
execution of the Contribution Agreement.
Annex 3.1.3.1
to Contribution Agreement
[CONFIDENTIAL TREATMENT REQUESTED]
(1 Page)
Annex 3.1.3.2
to Contribution Agreement
[CONFIDENTIAL TREATMENT REQUESTED]
(1 Page)
Annex 3.1.3.3
to Contribution Agreement
[CONFIDENTIAL TREATMENT REQUESTED]
(3 Pages)
Appendix 1
to Annex 3.1.3.3
to Contribution Agreement
[CONFIDENTIAL TREATMENT REQUESTED]
(3 Pages)
Annex 5.1.1
to Contribution Agreement
[CONFIDENTIAL TREATMENT REQUESTED]
(27 Pages)
ANNEX 6.1.6
BETRIEBSVEREINBARUNGEN
GRUNDSATZE/RICHTLINIEN
UBERSICHT/SEITE I
Nr Regelungsgageastand:
1. Einheitliches Entgeltsystem mit Protokollnotizen und Einstufungs -,
Einarbeitungs - und Durchlaufzeitenregelung
2. Entgeltfortzahlung im Todesfall
3. Jahrespramienordnung: Erfolgsheteiligung
4. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ Leistungen
6. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇. Gebuhrenerfassung u. abrechnung der Telefonanlage
8. Werksbusfahrpreis: SoBe Beschlub zum Werksbusfahrpreis
9. Altersversorgung, Ende des ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. Firmenrente; Witwenrente
11. ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. Urlaubsgewahrung, Merkblatt zum aT Urlaubszuschull
13. Zushussee zur beruflichen Weiterbildung
14. Pensionierungsurlaub
15. Freizeitgewahrung fur Umzug
16. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ bezahlter and unbezahlter Freistellung,
Freistellung fur ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
ANNEX 6.1.6
BETRIEBSVEREINBARUNGEN
GRUNDSATZE/RICHTLINIEN
UBERSICHT/SEITE 2
Nr Regelungsgageastand:
19. Arbeitsordnung und Erganzungen zur Arbeitsordnung
20. Mitarbeitergesprach
21. Verarbeitung personenbezogener Mitarbeiterdaten
22. Durchfuhrung von Abteilungsfeicrn
23. Positive Zeiterfassung u. glcitende Arbeitszeit, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. Grundsatze fur Bildschirmtatigkeit
25. Familie, Beruf, Teilzeit
26. ▇▇▇▇ von Ausbildungsgruppenspreeher
27. Mandatstragerregelung
28. Betriebliche Vertrauensleute
29. Betriebliches ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇ im Betrieb Liste der Suchthelfer
31. Arbeitssicherhcit und Gesundheitsschutz
32. Ausweisregelung
33. Vorzeitige Pensionierung und Regelungsabrede
34. Neue Techniken
35. StraBenverkchrsordnung; Parkordnung
36. Grundsatze der Mietgentaltung
ANNEX 6.1.6
BETRIEBSVEREINBARUNGEN
GRUNDSATZE/RICHTLINIEN
UBERSICHT/SEITE 3
Nr Regelungsgageastand:
37. Direktversicherung
Verhutung-von Hepatiris-Infektionen; Grundsatze zur HIV-Infektion
38. und zur Krannkheit AIDS; Richtlinien zur Verhutung von Infektionen
39. Verwcndung von Kreditkarten bei Dienstreisen
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
Annex 6.1.7
to Contribution Agreement
negative report
Annex 7
to Contribution Agreement
[CONFIDENTIAL TREATMENT REQUESTED]
(1 Page)
ANNEX 10
to the Contribution Agreement
OPERATING LEASE AGREEMENT
between
Behringwerke Aktiengesellschaft
Postfach 1140
D-35001 Marburg
(hereinafter "Behringwerke")
and
Behring Vakzine GmbH & Co.
(hereinafter "VuCo GmbH & Co.).
PREAMBLE
Pursuant to the (Contribution Agreement, of which this Operating Lease Agreement
is an annex, Behringwerke transfers its human vaccines unit (hereinafter the
"Business") to VuCo GmbH & Co. Since VuCo GmbH & Co. needs various permissions
to continue the Business, which it presently does not possess, the parties agree
that Behringwerke shall continue to operate the Business for a transfer period
on the basis of an operating lease agreement.
In consideration hereof, the parties hereto agree as follows:
2
1. SUBJECT OF AGREEMENT
Subject of this Operating Lease Agreement is the Business containing all of
the Vaccine Assets operating property with the exception of the Stock which
is owned by Behringwerke.
2. BEGINNING AND DURATION OF THE AGREEMENT
2.1 The lease shall come into force on the Contribution Date.
2.2 The lease runs for an indefinite period.
2.3 This Agreement is deemed to be terminated if all other
conditions necessary for the occurrence of the Closing Date as defined
in the Purchase Agreement are satisfied or waived.
2.4 The right of the Parties to terminate the agreement without
notice for good cause remains unaffected.
3. RENT
3.1 Behringwerke shall have the right to determine the
amount of the rent as it deems appropriate. It shall be paid at the
end of each calendar month.
3.2 Upon request of Behringwerke, VuCo GmbH & Co. shall submit an invoice
separately showing the v.a.t.
4. OPERATION OF BUSINESS
4.1 As of the Contribution Date. Behringwerke shall operate the Business
on its own account.
4.2 Behringwerke is obliged to operate the Business in accordance with
Art. 9 of the Contribution Agreement. A sublet is not permitted.
Behringwerke is not entitled to dispose any of the fixed assets of the
Business.
3
4.3 Behringwerke shall observe the regulations of the Industrial Act
(Gewerbeordnung), the security regulations and all other regulations
under public law.
4.4 By the end of this Agreement, Behringwerke shall transfer all new
investments to VuCo GmbH & Co. pursuant to Article 7 para. 2 of this
Agreement.
4.5 Behringwerke shall be fully liable for all damages caused in
connection with the Business and shall hold VuCo GmbH free and
harmless from all claims in that respect.
4.6 Behringwerke shall insure the assets in the previous extent.
5. ASSIGNMENT OF EMPLOYMENT CONTRACTS
Behringwerke assumes pursuant to sect. 613 a BGB (Civil Code) for the
duration of this Agreement the entire workforce of the Business and the
rights and obligations as of the Contribution Date stemming from the
employment contracts and pension liabilities relating to employees still
active.
6. WARRANTY
Any warranties and representations by VuCo GmbH & Co. are excluded.
7. TERMINATION OF THE OPERATING LEASE AGREEMENT
7.1 Upon the termination of this Agreement, the transfer of the Business
is governed by Articles 4 and 5 of the Contribution Agreement and by
the regulations set forth hereinafter.
7.2 At the date of the end of this Agreement, Behringwerke shall transfer
to VuCo GmbH & Co. the Stock which belongs to the Business and the new
investments according Article 4 para. 4 of this Agreement. For this
purpose, VuCo GmbH & Co. and Behringwerke shall conduct a stock-taking
of the Stock and of the new investments (hereinafter "Stock-Taking")
close to the
4
day of the termination of this Agreement. The book value of the
aforementioned objects shall be credited to capital accounts I and II
as provided in Art. 2 of the Contribution Agreement.
7.3 To the extent meaningful, the regulations of the Contribution
Agreement shall be applicable, mutatis mutandis, with respect to the
retransfer of the Business to VuCo GmbH & Co.
8. MISCELLANEOUS
8.1 Unless otherwise defined herein, all terms shall have the same
meanings and definitions as in the Contribution Agreement.
8.2 Unless otherwise specifically amended hereby, all other terms of the
Contribution Agreement shall remain in full force and effect.
8.3 To the extent possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under the
applicable law. If any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Agreement. To the extent that a provision is
ineffective or invalid, it shall be replaced by an effective and valid
provision which comes as close as possible to the economic purpose of
the ineffective or invalid provision.
8.4 Any modifications or amendments of this Agreement or of any provision
of this Agreement including this Art. 8.4 shall be effective only if
made in writing, unless the law provides for a stricter form.
8.5 This Agreement is governed by the laws of the Federal Republic of
Germany.
8.6 The exclusive place of jurisdiction shall be Marburg.
Annex 11.1
to the Contribution Agreement
MASTER SERVICE AGREEMENT
between
Behringwerke AG
35001 Marburg
- hereinafter "Behringwerke" -
and
Behring Vakzine GmbH & Co.
hereinafter "VuCo GmbH & Co." -
2
PREAMBLE
A. Pursuant to the Contribution Agreement to which this Agreement is an Annex
and to the Purchase and Assignment Agreement entered into by Behringwerke
and 31. CORSA Verwaltungsgesellschaft mbH (the "Purchase Agreement"),
Behringwerke is contributing its human vaccine unit (the "Business") to
VuCo GmbH & Co. VuCo GmbH & Co. will, for the foreseeable future,
continue to conduct the Business within the premises of Behringwerke on a
lease basis. Therefore, and due to the numerous operational and
technological interdependencies between the business operations of
Behringwerke and VuCo GmbH & Co., the Parties agree that both will
require supply of certain goods and services from the respective other
Party.
B. In this Agreement, the Parties wish to stipulate the terms and conditions
applicable to such supply of goods and services.
C. In order to facilitate the efficient supply of goods and services by
Behringwerke to VuCo GmbH & Co. and vice versa and to ensure that each
Party may plan ahead to remain cost-effective and within the terms and
conditions set forth herein, it is important that the Parties advise each
other on a cooperative basis of their requirements and timetables.
Article I - Services Supplied under this Agreement
1.1 Subject to the terms and conditions set forth herein, Behringwerke will
supply VuCo GmbH & Co. with goods and services listed in ANNEXES (the
"Behringwerke Services"), VuCo GmbH & Co. will receive and accept such
Behringwerke Services from Behringwerke.
Behringwerke may use Hoechst or Centeon Pharma GmbH or affiliates residing
on Behringwerke's premises or other third parties, the latter only to the
extent the services do not require the trust of VuCo GmbH & Co. such as
painting (hereinafter collectively "Internal Partners") as a sub-contractor
in order to meet its obligations under this Agreement with respect to such
Behringwerke Service. and nothing in this Agreement shall limit such right
of sub-contracting.
3
1.2 Subject to the terms and conditions set forth herein, VuCo GmbH & Co. will
supply Behringwerke with goods and services listed in ANNEXES - (the `VuCo
Services"; Behringwerke Services and VuCo Services are hereinafter
collectively referred to as the "Services"). Behringwerke will receive and
accept such Services from VuCo GmbH & Co. It is further understood that
Behringwerke may pass on and transfer any VuCo GmbH & Co. Services to
Internal Partners.
1.3 The Services are individually defined as to their nature in Annexes. All
Services will be provided in the same amount as provided in 1995, adjusted
to reflect Behringwerke's projections for 1996: provided, that either Party
may request an additional amount of any Service, and the provider of such
Service shall use reasonable commercial efforts to provide such additional
amount.
1.4 Due to the Business being located within the Behringwerke premises and the
said technological interdependence, it is mandatory that Behringwerke
supplies and VuCo GmbH & Co. receives the Behringwerke Services listed in
ANNEXES - (such as utilities and fire brigades). VuCo GmbH & Co. will
receive such Behringwerke Services exclusively from Behringwerke. For the
same reasons, it is mandatory that VuCo GmbH & Co. supplies and
Behringwerke receives the VuCo GmbH & Co. Services listed in ANNEXES - .
These Services cannot be terminated during the term of the Lease Agreement.
1.5 Services other than those defined in the Annexes hereto are not part of
this Agreement and may be agreed upon separately in each single case
pursuant to Art. 1.8. In particular, the Parties will enter into a separate
lease agreement regarding the use by VuCo GmbH & Co. of parts of
Behringwerke's premises.
1.6 Whenever one of the Parties and/or any of the Internal Partners needs goods
and services in addition to those listed in ANNEXES - and the other Party
could also be considered as a supplier of such additional goods and
services, the other Party shall be requested to tender them. If such goods
and services are nevertheless obtained from an outside supplier, the other
Party is to be advised of the reasons for such decision. At equal cost-
effectiveness and comparable other terms and conditions, the respective
other Party shall be preferred to any outside supplier.
4
1.7 If VuCo GmbH & Co. in addition requires special goods and services which
are not available or are not available in the desired quality or quantity
or at the desired time(s), Behringwerke will make every reasonable effort
to supply these additional goods and services, too, without, however, being
obliged to do so. Any additional costs resulting from the supply of these
additional goods and services will be borne by VuCo GmbH & Co. at a price
to be negotiated between the Parties. If the additional goods and services
are also used by other internal customers of Behringwerke, the additional
costs will be shared proportionately, based on use, between Behringwerke
and VuCo GmbH & Co.
1.8 If and when such additional goods and services referred to in Art. 1.6 or
1.7, above, are purchased from the respective other Party, the respective
Services shall be listed in new Annexes in the form of ANNEXES - setting
forth all information necessary and signed on behalf of each Party by a
duly authorized signatory (the supply of such goods and services shall be
considered "Behringwerke Services" or "Vu-Co Services", as the case may be,
and "Services" in each case) and the provisions of this Agreement shall be
applicable to such goods and services.
Article 2 - Principles Governing the Supply of Services
2.1 The Parties shall supply the Services in the same kind and quality as if it
were for captive use (SORGFALT IN EIGENEN ANGELEGENHEITEN). They will
allocate qualified staff to the supply of the Services. Employees
transferred to VuCo GmbH & Co pursuant to the Contribution Agreement shall
be deemed qualified for the position held as of the Closing Date.
2.2 Each Party shall observe that the Services supplied by it are supplied, and
that its operations for which the other Party supplies such Services are
conducted, in accordance with the applicable legislation.
The Parties shall observe in particular the technical regulations in
respect of pharmaceutical products for human use and the products comprised
in the business of the respective other Party, as well as applicable law,
ordinances or orders of public authorities. In addition, the Parties shall
comply with any health and safety regulations or requirements protecting
employees and third parties in the sites and buildings or parts thereof
occupied by the Parties.
5
2.3 When supplying Services under this Agreement, each Party shall comply with
the respective other Party's requests as to the specific circumstances of
such supply to the extent reasonable and possible. Neither Party is,
however, obliged to comply with such requests if there are reasons to
assume that compliance would breach any legislation in force, lead to
damages to its installations or its property or property of third parties
or could be associated with exposure to danger of persons. In such case,
the respective Party shall promptly inform the other Party of the reasons
of its concern and discuss appropriate actions with the other Party to
avoid disadvantages to such other Party as far as reasonably possible.
2.4 If either Party needs official authorization for its supply of Services
hereunder such Party will prepare the appropriate applications together
with, and in consultation with, the Party receiving the Services and submit
them to the authorities. Behringwerke and VuCo GmbH & Co. will keep each
other regularly informed on the progress made in such matter and on their
respective negotiations with the authorities and will discuss in advance
any necessary measures.
Behringwerke and VuCo GmbH & Co. shall, in particular, promptly inform each
other if official action is likely to be initiated which could result in
the withdrawal or revocation of any authorization for those operations of
VuCo GmbH & Co. and of Behringwerke which relate to the Services under this
Agreement.
2.5 Behringwerke and VuCo GmbH & Co. will regularly discuss questions of common
interest regarding the supply of Services hereunder and regarding those
units supplying such Services. Should one of the Parties intend to modify
its operations in a way which would have significant effects on its future
need for Services supplied by the other Party, it will inform the other
Party without delay in order to allow for a joint examination and
discussion of the effects of such modification on the mutual service
relationships and to enable the respective other Party to provide an
initial assessment of the resulting cost increases or reductions to serve
as a basis for such discussions. In such case, the Parties will make every
reasonable effort to supply each other with additional amounts of Services
in the most economical way.
6
Article 3 - Quantity and Measurement of Services
3.1 Unless otherwise provided for in ANNEXES - , the amount of any Services
continuously supplied in accordance with such Annexes shall be reviewed by
the Parties on or before September 30 of each year for the following year.
To the extent the Parties are unable to reach an agreement on the amount of
any
Services to be supplied during the following year, the following applies:
3.1.1 in case of increased demand, the supplying Party will endeavor to
meet such demand, but will only be obliged to supply such
Services in the amount agreed upon for the current year;
3.1.2 in case of reduced demand, the supplying Party will supply only
the requested amount of such Services; however, if the supplying
Party proves that it incurred any residual costs due to such
reduction, it shall be indemnified by the receiving Party, unless
otherwise provided for herein.
3.2 Subject to Art. 1.3, the methods, places and other particulars of
measurement of any measurable Services (e.g., in time, quantities of
energy, etc.), and the allocation method with regard to any non-measurable
Services (e.g., security, fire brigade) or for which metering devices are
not available, are provided for in the respective Annexes. The Parties
shall review such provisions as part of the annual review pursuant to Art.
3.1.
Article 4 - Remuneration
4.1 Services shall be provided at Cost as defined in Art. 4.2.
4.2 "Cost" means the fully burdened, fairly allocated cost of providing the
relevant Services, which shall include a reasonable return on employed
capital and reasonable depreciation and amortization of employed assets
over their useful lives, and a fairly allocated charge for underutilized
plant and equipment, provided that each Party uses its best efforts to
employ such plant and equipment otherwise. Cost shall be determined
pursuant to reasonable and customary allocation and calculation
methodologies as consistently applied by Hoechst AG and Guarantor and which
are consistent with German GAAP; provided that neither Parties' method-
7
ologies will be applied in a manner that would cause the Costs charged to
the other Party to exceed the costs as would be calculated in accordance
with the methodologies reflected in the financial statements as attached in
Annex 7.1.19 of the Purchase Agreement. The Parties will meet and confer
within three months of the Closing Date, as defined in the Purchase
Agreement, regarding their respective methodologies.
4.3 Each Party has the right to audit the other Party's books and records by an
independent Wirtschaftsprufer, at reasonable times and upon reasonable
notice, solely for the purpose of confirmation of such Party's calculation
of Costs. Auditing shall be no more frequent than once a year.
4.4 If either Party believes that the costs of Services provided to it
hereunder are substantially higher than the costs at which such Services
generally are available, the Parties shall meet and confer to consider
appropriate action.
Article 5 - Invoicing and Payment
The Parties' respective financial departments will negotiate reasonable and
appropriate
invoicing and payment terms including compensation for the time value of money.
Article 6 - Liability
6.1 Each Party shall monitor continuously whether the other Party is supplying
Services in the agreed amount and quality. Unless otherwise provided in
the Annexes the following applies: Any incorrect amount and any obvious
defect shall be notified in writing to the other Party promptly after
detection. however no later than 30 (thirty) working days after the date on
which the respective Service was rendered. Other defects shall be notified
in writing to the other Party promptly after detection,, however no later
than 6 (six) months after the date on which the respective Service was
rendered. No Party is obliged to accept late notification of complaints.
6.2 The Parties shall only be liable for lack of diligence as applied in their
own business (SORGFALT IN EIGENEN ANGELEGENHEITEN), Liability for
consequential damages is hereby excluded.
8
6.3 In any case, liability of each Party for damages due to, or in connection
with, Services supplied under this Agreement which are not in accordance
with the requirements stipulated herein is limited to an amount of
[CONFIDENTIAL TREATMENT REQUESTED] (in words: [CONFIDENTIAL TREATMENT
REQUESTED]) per damaging event and to a total of [CONFIDENTIAL TREATMENT
REQUESTED] (in words: [CONFIDENTIAL TREATMENT REQUESTED]) per calendar year,
all to the extent legally possible. Such limits are not applicable to the
extent the damaging Party can recover compensation for such damages from
third parties including insurance companies.
6.4 Damages which amount with respect to a single damaging event to less than
DM 5,000 (in words: Deutsche ▇▇▇▇ five thousand) shall not be recoverable,
provided that the aggregate amount of such small damages during one
calendar year is not exceeding DM 25,000 (in words: Deutsche ▇▇▇▇
twenty-five thousand).
Article 7 - Force Majeure
7.1 Unexpected interruptions in the operations of suppliers, unexpected delays
in delivery or failure to make deliveries on the part of suppliers,
strikes, lock outs, official restrictions and other eventualities which
cannot reasonably be controlled or avoided by the respective Party ("Force
Majeure") shall relieve such Party to the extent and for the duration of
such event from its obligations under this Agreement and will not justify a
claim for damages for any losses suffered by the other Party.
7.2 If a Party is forced to interrupt the supply of Services in whole or in
part due to Force Majeure and if such situation is foreseeable, such Party
shall inform the respective other Party promptly of the reasons for, and
the expected extent and duration of, such interruption. The Parties will
make every reasonable effort to keep the negative effects of such an event
as small as possible.
7.3 After an event of Force Majeure, the Parties shall agree amicably on how
and to what extent Services not supplied are to be made up.
7.4 If the supply of Services is reduced owing to an event of Force Majeure,
the respective Party will share the capacity it has available among its
internal customers, the respective other Party and any other outside
customers with respect to
9
whom it has undertaken obligations, in accordance with the proportion
of its Services previously accounted for by them.
Article 8 - Duration and Termination
8.1 This Agreement shall commence on the Contribution Date or in case the
Operating Lease Agreement becomes effective upon the termination of the
Operating Lease Agreement and shall run indefinitely, unless otherwise
provided for in this Agreement.
8.2 Either Party may terminate this Agreement with immediate effect with regard
to the relevant Service(s) if the other Party fails to observe significant
obligations under this Agreement and does not, within a period of 60
(sixty) days after having been warned by the other Party in writing to do
so, return to a course of action which is in line with this Agreement and,
as far as possible, remedy the infringement of this Agreement.
8.3 Either Party may terminate this Agreement with immediate effect if the
other Party becomes insolvent or, in particular, if composition or
insolvency proceedings are instituted with regard to its assets or if such
procedures have been denied due to lack of assets.
8.4 Furthermore, each Party is entitled to terminate this Agreement, on a
Service by Service basis, with respect to Services received by it by giving
prior written notice of termination; provided that no such notice may be
given before two years in case of category I Services or six months for any
other Services, all after Closing Date as defined in the Purchase
Agreement.
Category I Services: two years prior written notice
Category II Services: one year prior written notice
Category III Services: six months prior written notice
8.5 In the event VuCo GmbH & Co. terminates in accordance with Art. 8.4 filling
and packaging Services less than five years after the Closing Date as
defined in the Purchase Agreement, and Behringwerke proves that it incurs,
in connection with such termination, costs which cannot be eliminated even
though Behringwerke uses its best efforts to reduce or eliminate such costs
("Residual
10
Costs"), VuCo GmbH & Co. shall compensate Behringwerke for (i) in the first
year after such termination becomes effective: 50% of such Residual Costs,
(ii) in the second year: 25%, and (iii) in the third year: 12.5% of such
Residual Costs.
8.6 In case a Party has - upon specific request of the other Party terminating
this Agreement partially or entirely - made investments with regard to
operations rendering Services to the other Party which it would not have
made without such request, such other Party shall bear 100% of any Residual
Costs after termination, until such Residual Costs have been completely
reimbursed.
8.7 The Party claiming Residual Costs shall submit to the other Party a
detailed record of such Residual Costs by the end of each calendar quarter.
8.8 The Residual Costs shall be invoiced separately for each month and shall
become due and payable on the 15th day of the month following the date on
which the respective other Party receives such invoice. Art. 4.3 shall
apply MUTATIS MUTANDIS.
8.9 Any notice of termination of this Agreement, in its entirety or in part,
shall only be valid if given in writing.
8.10 In case that either Party terminating Services wishes to establish its
own functions with regard to such Services, it shall give priority to
employees of the existing functions of the respective other Party.
8.11 Upon notice of termination of any Services hereunder, the Parties shall
meet and confer regarding reasonable and appropriate steps to minimize
the impact of such termination on remaining operations, in particular
the possibility of gradually phasing out such Services over the course
of the termination period.
Article 9 - Confidentiality
9.1 Any information whether written, oral or otherwise provided by a Party or a
Party's sub-contractor to the other Party and any information obtained by a
Party in connection with this Agreement, including the terms and conditions
of this Agreement, shall be treated as confidential by the Party, receiving
such information, shall only be used for purposes consistent with this
Agreement and shall not
11
be disclosed to any third party unless the Party or sub-contractor who
provided such information has given its prior written consent to such other
use or disclosure; provided, however, that each Party may disclose such
information for purposes consistent with this Agreement to its employees,
agents and sub-contractors, if any such employee, agent or sub-contractor
agrees to keep such information confidential as if it were a party hereto.
9.2 The obligations of confidentiality, including the obligations of restricted
use, shall continue for a period of ten years after the termination of this
Agreement.
9.3 Excluded from the restrictions provided for in Art. 9.1 and 9.2 above is
all information that has been disclosed by one Party or a sub-contractor to
the other Party and which is:
9.3.1 information that such other Party possessed in its own right
before disclosure by the first Party or the sub-contractor;
9.3.2 information that is in the public domain at the time of
disclosure by a Party or a sub-contractor or has become part of
the public domain through no fault of the other Party having
received such information;
9.3.3 information that such other Party has received, without
restriction on its disclosure, legitimately from a third party
not deriving the same from the Party or sub-contractor who made
the original disclosure.
9.4 Information which is necessary for the enforcement of this Agreement or for
compliance with applicable law, ordinances or orders of public authorities
may be disclosed accordingly, provided that all reasonable steps are taken
to preserve the confidentiality and the restricted use of such information.
9.5 All drawings, plans and other documents produced or commissioned by a Party
or sub-contractor regarding any Service to be rendered shall remain the
property of such Party or sub-contractor, unless agreement to the contrary
has been reached. Subject to Art. 9.3, such documents and any other
confidential information received and any copies thereof shall be destroyed
or returned upon request of the disclosing Party or sub-contractor or in
the event of termination or rescission of this Agreement in total or in
part.
12
Article 10 - Governing Law; Arbitration
10.1 This Agreement shall be governed by, and construed in accordance with,
the law of the Federal Republic of Germany.
10.2 In case of any question or difference which may arise concerning the
validity, construction, meaning or effect of this Agreement or
concerning the rights and liabilities of the Parties hereunder or any
matter arising out of, or in connection with, this Agreement cannot be
amicably resolved, such question or difference shall be referred to,
and determined by, an ad hoc arbitration tribunal of three arbitrators
(the "Tribunal").
10.3 The arbitrators shall be appointed as follows:
10.3.1 each party shall appoint one arbitrator, and the two arbitrators
so appointed shall appoint a third arbitrator who shall be
qualified to sit as a judge (Befahigung zum Richteramt) and who
shall act as president of the Tribunal;
10.3.2 if either Party fails to appoint its own arbitrator within
twenty-one days of receipt of a written request by the other
Party or if the two arbitrators are unable to jointly select a
president within twenty-one days from the last appointment, such
arbitrator or president shall be appointed by the President of
the Court of Appeal of Frankfurt am Main (Prasident des
Oberlandesgerichts) at the request of either Party.
10.4 The venue of such arbitration shall be Frankfurt am Main and the
language shall be German.
10.5 The award of the Tribunal, which shall state the reasons for the
decision, shall be final and binding upon the Parties. The
arbitrators shall have power to direct any interim measures.
10.6 With respect to aspects not expressly stipulated in this Art. 10, the
arbitration shall be in accordance with the rules
(Schiedsgerichtsordnung) of the Deutsche Institute for
Schiedsgerichtswesen e.V.
13
Article 11 - Access to Behringwerke-Premises
11.1 With regard to the access to the Behringwerke-premises by employees of VuCo
GmbH & Co. and/or third parties doing business with VuCo GmbH & Co. the
following applies:
11.1.1 At the entrance to the premises controls will be held in
accordance with the Behringwerke-guidelines as amended from time
to time. To the extent technical appliances are required (e.g.,
code cards), the specifications of which have to be agreed upon
with Behringwerke, VuCo GmbH & Co. shall obtain such appliances
at its own cost, to the extent possible by law. It is VuCo GmbH
& Co.'s responsibility that any orders of Behringwerke control
personnel are followed and that the specific identification
requirements imposed by Behringwerke under its guidelines are
met.
11.1.2 In order to meet the obligations hereunder, buildings, plants and
parts of the Behringwerke-premises not expressly designated for
such purpose may only be entered with the consent of
Behringwerke.
11.2 VuCo GmbH & Co. undertakes to comply with the Behringwerke-guidelines, as
applicable at any given time, to the use of its premises, in particular
those regarding fire prevention, security or traffic in non-public areas.
Such obligation is applicable also to VuCo GmbH & Co. personnel and to
third parties doing business with VuCo GmbH & Co.; and VuCo GmbH & Co.
shall inform such third parties of said obligations and guidelines.
Article 12 - Final Provisions
12.1 Unless otherwise defined herein, all terms shall have the same meanings and
definitions as those in the Contribution Agreement.
12.2 Unless otherwise specifically amended hereby, all other terms of the
Contribution Agreement shall remain in full force and effect.
12.3 Any rights of set-off (Aufrechnung) and/or retention (Zuruckbehaltung)
based on claims for damages under this Agreement shall be excluded unless
such claims
14
are undisputed between the Parties or confirmed by a non-appealable
court/arbitration decision.
12.4 Each Party may only assign this Agreement to a fully controlled affiliate
which has the means to fulfill the obligations under this Agreement.
12.5 From time to time after the date hereof, at the request of either Party,
the Parties shall execute and deliver to such requesting Party such
documents and take such other action as such requesting Party may
reasonably need in order to consummate more effectively the transactions
contemplated hereby and to satisfy any legal requirements.
12.6 Any notification or amendment to this Agreement, including this Art. 12.6,
must be in writing in order to be valid, unless more stringent requirements
as to the form are stipulated by applicable law.
12.7 The Annexes hereto will become integral parts of this Agreement, and all
references herein to this "Agreement" shall also include the Annexes.
12.8 To the extent possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under the
applicable law. If any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions
of this Agreement. To the extent that a provision is ineffective or
invalid, it shall be replaced by an effective and valid provision which
comes as close as possible to the economic purpose of the ineffective or
invalid provision.
________________,this ___ day of _______,1996.
BEHRINGWERKE AG [VuCo GmbH & Co.]
----------------------------------- ---------------------------------
By: By:
Title: Title:
ANNEX 11.2
to the Contribution Agreement
LEASE AGREEMENT
between
Behringwerke AG
35001 Marburg
- hereinafter "Behringwerke" -
and
------------------------
------------------------
- hereinafter "VuCo GmbH & Co." -
2
TABLE OF CONTENTS
Preamble 4
Article 1 - Object of Lease 4
Article 2 - Term of Lease 5
Article 3 - Rent 5
Article 4 - Ancillary Costs 6
Article 5 - Value Added Tax 8
Article 6 - Condition of the Premises 8
Article 7 - Liability, Encumbrances, Responsibility 8
Article 8 - Insurance 9
Article 9 - Use of Premises 10
Article 10 - Maintenance and Repairs 12
Article 11 - Destruction of Premises 12
Article 12 - Structural Changes by Behringwerke 13
Article 13 - Assignment and Subletting 13
Article 14 - Change of legal entity, Sale of Business 14
Article 15 - Signs 14
Article 16 - Indemnification 14
Article 17 - Default, Termination 15
Article 18 - Hazardous Materials 17
Article 19 - Force Majeure 18
Article 20 - Confidentiality 18
3
Article 21 - Arbitration 19
Article 22 - Final Provisions 20
4
PREAMBLE
Pursuant to the Contribution Agreement to which this Lease Agreement is an
annex, Behringwerke is contributing its human vaccine unit (the "Business") to
VuCo GmbH & Co. VuCo GmbH & Co. intends, for the foreseeable future, to conduct
the Business within the premises of Behringwerke on a lease basis.
Therefore, the parties hereto agree as follows:
ARTICLE 1 - OBJECT OF LEASE
1.1 Behringwerke hereby leases to VuCo GmbH & Co. and VuCo GmbH & Co. hereby
leases from Behringwerke certain parcels rentable land offices space,
production facilities including fixtures and integral parts (WESENTLICHE
BESTANDTEILE) within Behringwerke's Marburg sites which are particularly
described and fully enumerated in ANNEX 1.1, (a) and marked in black in
ANNEX 1.1, (b) (the "Premises"). Under this lease, VuCo GmbH & Co. is also
entitled to enter and use common areas (GEMEINFLACHEN), designated access
and delivery areas, if any, waste disposal facilities and access to ingress
and egress of the site, to parking spaces, and to the cafeteria, subject to
Behringwerke-guidelines which shall be exercised by Behringwerke in
accordance with sect. 315 et seq. Civil Code (BGB).
1.2 The Premises shall be occupied and used by VuCo GmbH & Co. for the business
of human health care and shall not be used for any other purpose whatsoever
without the prior written consent of Behringwerke, which shall not be
unreasonably withheld.
Any consent by Behringwerke, even if not explicitly stated, shall always be
granted subject to all official authorizations as may be required for the
envisaged change of the use of the Premises. Upon request, VuCo GmbH & Co.
shall provide Behringwerke with proof that all necessary official
authorizations have been duly granted.
1.3 The supply of utilities and services such as electricity, water etc. by
Behringwerke and VuCo GmbH & Co.'s obligation to receive, and pay for, any
such utilities and services are specifically settled in the Master Service
Agreement.
ARTICLE 2 - TERM OF LEASE
2.1 The Lease shall commence on the Contribution Date or, in case the Operating
Lease Agreement (BETRIEBSPACHTVERTRAG) becomes effective, upon termination
of the Operating
5
Lease Agreement (the "Closing Date"). The initial term of the lease shall
be five years (the "Initial Term"). VuCo GmbH & Co. shall have the right in
its discretion to extend the lease for an additional five years (the
"Extension Period") by providing written notice to Behringwerke no later
than March 31, 2001.
During the Extension Period, VuCo GmbH & Co. shall have the right to
terminate the lease in whole or in certain parts of the Premises upon six
months' prior written notice to Behringwerke. During the Initial Term, VuCo
GmbH & Co. shall have the right to terminate the lease in part (but not in
whole) upon six months' prior written notice to Behringwerke, PROVIDED THAT
such right of early termination shall not apply to Premises used for
manufacturing including quality control.
In case Behringwerke undertook capital investments related to the Premises
in the Extension Period on specific written request of VuCo GmbH & Co. and
VuCo GmbH & Co. terminates this Agreement under the foregoing sentence,
VuCo GmbH & Co. shall reasonably compensate Behringwerke therefore.
2.2 Section 568 German Civil Code (Section 568 BGB) shall not apply upon expiry
of the term of the Lease.
ARTICLE 3 - RENT
3.1 As of the Closing Date VuCo GmbH & Co. shall pay to Behringwerke as annual
rent an amount to be calculated on the basis of present lease agreement
agreed between Behringwerke and Hoechst but in no case more than fair
market value. For this purpose VuCo GmbH & Co. has the right to audit
Behringwerke books and records of an independent Wirtschaftsprufer
acceptable for Behringwerke at reasonable times and upon reasonable notice
solely for the purpose of confirmation of such Party's calculation of
costs. Auditing shall be no more frequent than once a year.
In case the Parties cannot agree on the fair market rent either Party is
entitled to request the President of the chamber of commerce of Frankfurt
to nominate an expert who shall resolve such matter to be binding upon the
Parties. The costs shall be borne pursuant to sec. 91 et seq. Civil
Procedure Code (ZPO).
3.2 The Rent shall be due and payable in equal quarterly installments in
arrears on January 10, April 10, July 10 and October 10 of each year
(the"Rent Payment Dates").
6
3.3 Payments are to be made to a bank account named by Behringwerke in time to
be received at the respective Rent Payment Date. Late payment shall bear
interest at a rate of three percentage points above the relevant discount
rate of the German Federal Bundesbank.
ARTICLE 4 - ANCILLARY COSTS
4.1 In addition to the Rent VuCo GmbH & Co. shall bear certain ancillary costs.
Behringwerke AG shall use it best efforts to attribute the ancillary costs
as to the various buildings and to the various tenants. Only insofar as the
ancillary costs can not be attributed to specific buildings and/or specific
tenants the ancillary costs shall be allocated to all tenants, where
appropriate, on the basis of squarmeters rented, or on such other criteria
which is reasonable for the allocation of those costs among the various
users. Costs having been considered in calculating any fee under the Master
Service Agreement shall not be escalated to VuCo GmbH & Co. Ancillary costs
are:
4.1.1 expenses of cleaning, lightning, repairing, renewing, decorating,
maintaining and rebuilding any walls, fences, gutters, drains,
road ways, pavements, access ways, service areas and any other
common areas of the Premises which are or may be used or enjoyed
by VuCo GmbH & Co. in common with any other person or persons;
4.1.2 any insurance premiums payable by Behringwerke for insuring the
Premises or any part thereof;
4.1.3 all running expenses as defined in Appendix 3 to Section 27,
subsection 1, of the second computation order (Anlage 3 zu
Section 27 Abs. 1 der zweiten Berechnungsverordnung).
4.2 To the extent it is not possible for legal or factual reasons that VuCo
GmbH & Co. pay such costs and expenses directly and in its own name, VuCo
GmbH & Co. will reimburse to Behringwerke such costs at the respective due
date.
4.3 The costs referred to in Art. 4.1 shall be invoiced by the end of February
of each year, at the latest, for the respective preceding year.
VuCo GmbH & Co. shall make quarterly down-payments regarding the costs
referred to in Art. 4.1 amounting to one quarter of the budgeted ancillary
costs for this year. Any difference between the down-payments for a
calendar year and the respective invoice shall
7
be settled between the parties by a single payment payable one month after
receipt of the annual invoice pursuant to this Art. 4.3.
4.4 Behringwerke shall adjust the quarterly down-payment in its reasonable
discretion in accordance with Section 315 BGB if circumstances affecting
such payments should change. This adjusted down-payment shall become
payable as of the Rent Payment Date following receipt of the relevant
written notice.
ARTICLE 5 - VALUE ADDED TAX
All amounts owed hereunder are net, i.e. without Value Added Tax (VAT;
UMSATZSTEUER). If a payment is subject to VAT, such tax shall be paid in
addition against presentation of an invoice in accordance with the requirements
pursuant to Section 14 VAT Act (Section 14 UMSATZSTEUERGESETZ).
ARTICLE 6 - LIABILITY, ENCUMBRANCES, RESPONSIBILITY
From the Closing Date VuCo GmbH & Co. shall be responsible for the safe
condition of the Premises including VuCo GmbH & Co.'s equipment and attachments,
whether internal or external, and for the safe operation of the Business.
Furthermore, VuCo GmbH & Co. shall fully comply with all applicable laws,
regulations, rules, ordinances and requirements, including environmental laws,
of any governmental authority having jurisdiction over the Premises or the
Business.
ARTICLE 7 - INSURANCE
7.1 Notwithstanding any other provision of this Agreement, insurance with
respect to the Premises shall be maintained to the extent reasonable as
follows:
7.1.1 Behringwerke agrees to purchase, maintain and keep in force
during the term of this Agreement, insurance against damage or
destruction as result of risks as are for the time being
reasonably required to be covered such as fire, lightning,
explosion, riot, civil commotion, acts of terrorism, aircraft and
other aerial devices or articles dropped therefrom (other than
war risks), storm, flood and burst pipes in a sum equal to the
full reinstatement costs of the Premises and fixtures, equipment
and personal property contained therein, including the costs of
demolition, shoring up and site clearance and all architect's,
surveyor's and other professional fees and incidental expenses in
connection with reinstatement and business interruption insurance
covering the Premises. Such policies shall (i) name VuCo GmbH &
Co. as an additional insured and, with respect to business
interruption insurance, as a loss
8
payee, and (ii) provide that said insurances shall not be
cancelled unless 30 (thirty) day's prior written notice shall
have been given to VuCo GmbH & Co.
7.1.2 VuCo GmbH & Co. agrees to purchase, maintain and keep in force
during the term of this Agreement, a comprehensive general
liability insurance policy and such further insurance or
insurances which are necessary in respect of the Business. Such
policies shall (i) name Behringwerke as an additional insured,
and (ii) provide that said insurances shall not be cancelled
unless thirty (30) days' prior written notice shall have been
given to Behringwerke. For purposes of any general liability
claims made in respect of the Premises, VuCo GmbH & Co.'s
comprehensive general liability policy will be primary, and
Behringwerke's will be secondary.
7.2 Upon request, each party shall deliver to the other certificates evidencing
insurance coverage upon the Closing Date and upon each renewal of said
insurances.
7.3 VuCo GmbH & Co. and Behringwerke each agree that to the extent reasonably
possible the respective insurance carried by it against loss or damage by
fire or other casualty shall contain a clause whereby the insurer waives
its rights of recourse against the other party.
Pursuant to the foregoing, Behringwerke and VuCo GmbH & Co. hereby waive
all claims for recovery from the other party for any loss or damage to any
of its property insured under valid and collectible insurance policies to
the extent of any recovery collectible under such insurance. The foregoing
waiver shall be in force only if such VuCo GmbH & Co.'s and Behringwerke's
insurance policies contain a clause providing that such waiver shall not
invalidate the insurance.
7.4 If either Party fails to comply with its obligation to insure then, without
prejudice to its other remedies, the other party may effect and maintain
the relevant insurance and the premium and other costs of so doing
(including without limitation the cost of obtaining any insurance
valuations) shall be paid by the party failing to take such insurance.
ARTICLE 8 - USE OF PREMISES
8.1 VuCo GmbH & Co. shall only use the Premises or any part thereof in
accordance with the terms of this Agreement and like a diligent businessman
in the pharmaceutical business and shall comply with all legal requirements
and authorizations and security guidelines of Behringwerke.
8.2 VuCo GmbH & Co. shall not do anything that would unreasonably impair or
interfere with or tend to impair or interfere with any activities of
Behringwerke or any other party on the Marburg sites. VuCo GmbH & Co. shall
install at VuCo GmbH & Co.'s expense all equipment, safety
9
device, pollution control systems or other installations required at any
time with regard to the Business. The foregoing shall apply MUTATIS
MUTANDIS to Berhingwerke. Further Behringwerke shall use its best efforts
that no unreasonable impairment of or interference with the Business is
caused by other tenants of the Behringwerke site in Marburg.
8.3 Behringwerke warrants that as of the date hereof applicable zoning and land
use law permits the use of the Premises as described in Art. 1.2. VuCo
GmbH & Co. is responsible to maintain in place all permits required by law,
regulation, ordinance or other requirement of any governmental authority
with respect to the operation of the Business, except to the extent that
only Behringwerke may obtain such permits or to the extent that such
permits are required for common areas or entire buildings in which VuCo
GmbH & Co.'s portion of the Premises is less than 100%, in which event
Behringwerke must obtain such permits. The costs for such permits shall be
apportioned between the users of these buildings equal to their portion of
the area (FLACHENANTEIL) of the buildings.
8.4 VuCo GmbH & Co. shall not make any material alterations, improvements, or
additions of or to the Premises (collectively the "Alteration") without
first submitting to Behringwerke plans and specifications therefor and
obtain Behringwerke's prior written consent in each and every instance,
which consent shall not be unreasonably withheld or delayed. All
alterations made by VuCo GmbH & Co. shall be at the expense and the sole
risk of VuCo GmbH & Co.
8.5 Before installing any heavy objects, VuCo GmbH & Co. shall ascertain from
Behringwerke the bearing capacity of the floors. The authorized bearing
capacity (in absolute terms and per square meter) may not be exceeded,
otherwise VuCo GmbH & Co. shall be liable for all damage caused thereby and
shall reimburse Behringwerke in respect of any claims resulting therefrom.
8.6 Appliances and installations may only be connected to the existing mains,
and operated, in accordance with the mains' capacity. No interferences must
be caused by such appliances and installations. VuCo GmbH & Co. shall
inform itself about the capacity not be exceeded. VuCo GmbH & Co. shall
bear the cost of any alterations or new installations of the mains or other
supply or disposal pipes necessary due to VuCo GmbH & Co.'s operations.
Behringwerke, however, assures to its best knowledge that the mains in
place are sufficient for the Business as currently conducted.
10
ARTICLE 9 - MAINTENANCE AND REPAIRS
9.1 VuCo GmbH & Co. is responsible for proper servicing, maintenance and repair
of the Premises and shall maintain the Premises in good order and repair,
as required by law, necessary to ensure the safety and health of all
persons on the Premises.
9.2 Behringwerke is responsible for repairs of all common areas and of such
parts of buildings which, while not being part of the Premises, are
necessary for the Premises being used in accordance with the terms of this
Agreement. Further all necessary works and repairs which have to be
capitalized shall be performed by Behringwerke.
9.3 VuCo GmbH & Co. shall only be excused of its obligation to pay rent if
Behringwerke, having been requested by VuCo GmbH & Co. in writing with
reasonable notice to do so, has not met its obligation under Art. 9.2 and
such failure renders the affected portion of the Premises unusable for 5
(five) consecutive days. After such 5 (five) day period VuCo GmbH & Co.
will not be obligated to pay rent for such portion until such time as such
portion is repaired and returned to usable condition in compliance with all
relevant laws, regulations and administrative orders.
ARTCLE 10 - DESTRUCTION OF PREMISES
10.1 If the Premises or any part thereof are severely damaged or destroyed to an
extent that repair is likely to create costs in excess of 40 % of its
current partial value (TEILWERT) ("Damaged Property"), VuCo GmbH & Co.
shall give immediate notice thereof to Behringwerke and shall enable
Behringwerke to immediately assess the damages.
10.2 If Behringwerke determines, following its assessment of the damage which
has occurred, that the Damaged Property cannot be repaired or
reconstructed, as the case may be, within a reasonable period or with
reasonable efforts and expenses (in either circumstance, the "Loss Event")
the parties shall use their best efforts to agree on an adequate solution
acceptable to both parties. If the parties fail to agree within two months
of the Loss Event Behringwerke may elect not to repair or reconstruct the
Damaged Property and may thereupon terminate this Agreement with regard to
the respective part of the Premises delivering to VuCo GmbH & Co. notice
of such election. In such event, the rent shall be reduced
proportionately. VuCo GmbH & Co. can terminate the lease if the remaining
Premises are insufficient for the Business and Behringwerke cannot provide
for a reasonable alternative. In case the Damaged Property is not repaired
or reconstructed, Behringwerke shall be entitled to all payments made by
insurers with respect to the Damaged Property.
11
ARTICLE 11 - STRUCTURAL CHANGES BY BEHRINGWERKE
11.1 Behringwerke may, even without VuCo GmbH & Co.'s consent, carry out any
improvements or structural changes necessary or expedient to maintain,
preserve, modernize or expand the Premises, to eliminate imminent danger,
or to repair defects. In such case, Behringwerke shall reasonably take into
account the interests of VuCo GmbH & Co. VuCo GmbH & Co. shall allow
Behringwerke reasonable access to the Premises at reasonable times and
shall not obstruct or delay the execution of the work.
11.2 VuCo GmbH & Co. shall only be entitled to make claims against Behringwerke
because of any work carried out pursuant to Art. 11.1 if VuCo GmbH & Co.'s
activities have been considerably impaired thereby for more than 5 (five)
consecutive days.
ARTICLE 12 - ASSIGNMENT AND SUBLETTING
12.1 VuCo GmbH & Co. is only entitled to assign or transfer all or any of its
rights, benefits and obligations under this Agreement to affiliates (as
defined in sec. 15 et seq. Stock Corporation Act - AKTIENGESETZ) of Chiron
Corporation. Any other assignment or sublet needs the prior written consent
of Behringwerke which consent shall not be unreasonably withheld.
Behringwerke is only entitled to assign all or any of its rights, benefits
and obligations under this Agreement to affiliates (as defined in Sec. 15
et.seq. Stock Corporation Act - AKTIENGESETZ) of Hoechst AG. Any other
assignment by Behringwerke needs the prior written consent of VuCo GmbH &
Co. which consent shall not be unreasonably withheld.
12.2 In the event of subtenancy, VuCo GmbH & Co. shall be absolutely liable for
all acts and omissions of the sub-tenant.
12.3 In the event of subtenancy, VuCo GmbH & Co. hereby and as of now assigns to
Behringwerke as security all claims, including any accompanying liens which
it may have against the sub-tenant.
ARTICLE 13 - CHANGE OF LEGAL ENTITY, SALE OF BUSINESS
13.1 VuCo GmbH & Co. must notify Behringwerke immediately of any change in
control of VuCo GmbH & Co. or of its intention to sell or close the
Business or any material part thereof.
13.2 In case of the sale of VuCo GmbH & Co.'s business or a part thereof, buyer
has no claim to have this Agreement assigned to him.
12
ARTICLE 14 - SIGNS
Subject to all applicable zoning or regulatory requirements, VuCo GmbH &
Co. may install at its own expense and after obtaining any necessary
permits and Behringwerke's approval (which shall not be unreasonably
withheld) appropriate monument signs at the entrance to the Premises which
in any event may be comparable in number, size and overall impact to the
monuments of Behringwerke in the same or similar locations and appropriate
additional exterior signs on the buildings; provided, however, that upon
termination of this Agreement VuCo GmbH & Co. shall remove said sign(s) and
repair damages caused thereby.
ARTICLE 15 - INDEMNIFICATION
15.1 VuCo GmbH & Co. will indemnify, defend and hold Behringwerke and its
shareholders, subsidiaries, affiliates, officers, directors, agents and
employees harmless from and against any claims, costs, liabilities, fines,
damages or expenses (including reasonable attorney's fees) arising from or
alleged to arise from or out of VuCo GmbH & Co.'s operations or from or out
of an act, omission, fault, negligence or other misconduct of VuCo GmbH &
Co., its agents, ser-vants, employees, visitors or contractors with or at
the areas of the Premises over which VuCo GmbH & Co. has control occurring
after the Closing Date, except arising out of Behringwerke's gross
negligence.
15.2 Behringwerke will indemnify, defend and hold VuCo GmbH & Co. and its
general and limited partners, subsidiaries, affiliates, officers,
directors, agents and employees harmless from and against any claims,
costs, liabilities, fines, damages or expenses (including reasonable
attorney's fees) arising from or alleged to arise from or out of
Behringwerke's operations or from or out of an act, omission, fault,
negligence or other misconduct of Behringwerke, its agents, servants,
employees, visitors or contractors on the Premises or the Marburg sites,
except arising out of VuCo GmbH & Co.'s gross negligence.
15.3 To the extent the mutual obligations pursuant to Art. 15.1 and 15.2 exceed
the statutory liability, such obligations shall apply only if approved by
the respective insurance companies.
15.4 Neither Party shall be responsible for consequential damage hereunder.
ARTICLE 16 - DEFAULT, TERMINATION
16.1 The statutory provisions, except Section 554 German Civil Code (Section 554
BGB), shall apply for the termination of the Lease for serious cause.
13
16.2 Behringwerke may terminate the Lease without notice in particular if one or
more of the following events of default occur during the term of this
Agreement:
16.2.1 VuCo GmbH & Co. fails to pay any regular instalment of Rent
and/or ancillary costs when due and such default continues for 15
(fifteen) days upon receipt of a written notice from
Behringwerke, provided Behringwerke needs not furnish more than 2
(two) such notices in any calendar year; or
16.2.2 VuCo GmbH & Co. defaults in the performance of any other
requirement, obligation or covenant of this Agreement and any
such failure continues for 30 (thirty) days after notice thereof
from Behringwerke (excepting, however, any default which is not
reasonably susceptible of cure within said period of 30 (thirty)
days and which VuCo GmbH & Co. shall in good faith and with due
diligence be proceeding to cure); or
16.2.3 bankruptcy or composition proceedings are instituted against VuCo
GmbH & Co. or if a petition in bankruptcy filed by VuCo GmbH &
Co. is dismissed for lack of assets; or
16.2.4 the interest of VuCo GmbH & Co. in the Premises is taken upon
execution or by other process of law directed against VuCo GmbH &
Co., or taken upon or subjected to any attachment by any creditor
of VuCo GmbH & Co. or claimant against VuCo GmbH & Co., and such
attachment is not discharged within 15 (fifteen) days.
16.3 VuCo GmbH & Co. may also terminate the Lease if the Business cannot be
operated on the Premises due to public law; provided that VuCo GmbH & Co.
shall use reasonable efforts to avoid the applicability of such law,
including obtaining a waiver.
16.4 VuCo GmbH & Co. hereby grants to Behringwerke full and free right to enter
into and upon the Premises in such event as permitted by law, to repossess
the Premises and to remove objects belonging to VuCo GmbH & Co.
16.5 Any and all objects in the possession of VuCo GmbH & Co. at termination of
the lease (irrespective of ownership) or to which VuCo GmbH & Co. has a
claim, may be removed and/or stored at the discretion of Behringwerke at
the risk, cost and expense of VuCo GmbH & Co. VuCo GmbH & Co. shall pay to
Behringwerke, upon demand any and all expenses incurred in such removal and
all storage charged against such property so long as the same shall be in
Behringwerke's possession or control. Any such objects not retaken by VuCo
GmbH & Co. from storage within 40 (forty) days after removal from the
Premises may be sold (VERWERTET) by
14
Behringwerke without restrictions. The proceeds less any and all costs and
claims by Behringwerke shall be paid to VuCo GmbH & Co.
16.6 On termination of the Lease, whether in accordance with this Art. 16 or
Art. 2 of this Agreement, VuCo GmbH & Co. shall immediately surrender the
Premises, and deliver possession thereof to Behringwerke, properly
renovated and repaired. This shall include: all repairs pursuant to
Art. 10.1, renewal of the floor coverings and wall paper, painting of
radiators and heating pipes, as well as of doors, window frames and door
frames, all at least to the standard as of the Closing Date. Should VuCo
GmbH & Co. surrender the Premises without having carried out the work
described above, Behringwerke may carry out all necessary work at VuCo
GmbH & Co.'s expense. Behringwerke's claim in respect of the costs thereby
incurred shall also subsist if these works are carried out by the
subsequent tenant.
ARTICLE 17 - HAZARDOUS MATERIALS
17.1 Hazardous materials or material to be monitored (UBERWACHUNGSBEDURFTIG) or
waste as defined by the applicable laws, regulations and administrative
orders relating to chemicals, hazardous materials and waste (CHEMIKALIEN-,
GEFAHRSTOFF- UND ABFALLRECHT) may only be stored, handled, treated,
disposed of, discharged, produced, processed or used by VuCo GmbH & Co.
anywhere in or on the Premises or the common areas with the prior written
consent of Behringwerke and in full compliance with all applicable laws,
regulations and administrative orders. Such consent shall not unreasonably
be withheld. Such consent of Behringwerke is not required for the use of
such hazardous materials or material to be monitored or waste as are
currently in use or being created on the Premises. VuCo GmbH & Co. shall
keep and maintain updated material safety data sheets (or similar documents
required by law) and shall make them available for Behringwerke's
inspection upon request.
17.2 Each of Behringwerke and VuCo GmbH & Co. shall (i) promptly notify the
other of any complaints, notice or other correspondence received from any
third party concerning any actual or alleged violation of any applicable
law, regulation or administrative order regarding hazardous materials,
material to be monitored or waste; (ii) promptly notify the appropriate
public body in case of any emission, release, leakage or emergency of any
kind (STORFALL).
17.3 VuCo GmbH & Co.'s responsibilities, covenants and liabilities under this
Art. 17 shall survive the expiration or earlier termination of this
Agreement. Any events arising from acts or omissions occurring prior to the
Closing Date are the responsibility of Behringwerke.
15
ARTICLE 18 - FORCE MAJEURE
Neither party shall be responsible for delays or inability to perform its
obligations hereunder due to force majeure or for other causes beyond the
reasonable control of such party including acts of other tenants,
governmental restriction, regulation or control, labor dispute, accident,
mechanical breakdown, shortages or inability to obtain labor, fuel, steam,
water, electricity or materials, acts of God, enemy action, civil commotion
or fire or other casualties.
ARTICLE 19 - CONFIDENTIALITY
19.1 Any information whether written, oral or otherwise provided by a party to
the other party and any information obtained by a party in connection with
this Agreement, including the terms and conditions of this Agreement, shall
be treated as confidential by the party receiving such information, shall
only be used for purposes consistent with this Agreement and shall not be
disclosed to any third party unless the party who provided such information
has given its prior written consent to such other use or disclosure;
provided, however, that each party may disclose such information for
purposes consistent with this Agreement to its employees, agents and sub-
contractors, if such employee, agent or sub-contractor agrees to keep such
information confidential as if it were a party hereto.
19.2 The obligations of confidentiality, including the obligations of restricted
use, shall continue for a period of ten years after the termination of this
Agreement.
19.3 Excluded from the restrictions provided in Art. 19.1 and 19.2 above is all
information that has been disclosed by one party to the other party and
which is:
19.3.1 information that such other party possessed in its own right
before disclosure by the first party;
19.3.2 information that is in the public domain at the time of
disclosure by a party or has become part of the public domain
through no fault of the other party having received such
information;
19.3.3 information that such other party has received, without
restriction on its disclosure, legitimately from a third party
not deriving the same from the party who made the original
disclosure.
19.4 Information which must be disclosed in order to comply with any laws,
regulations or administrative or court orders may only be disclosed to the
entities named in such laws,
16
regulations or orders. Prior to such disclosure, the other party must be
informed about the nature, extent and contents of the information to be
disclosed.
ARTICLE 20 - LAW; VENUE
This Agreement shall be governed by, and construed in accordance with, the law
of the Federal Republic of Germany. The arbitration clause in the Contribution
Agreement shall not be applied.
ARTICLE 21 - FINAL PROVISIONS
21.1 Behringwerke, his agents or representatives shall, upon giving prior
notice, be entitled to inspect the Premises during VuCo GmbH & Co.'s normal
business hours and at reasonable intervals. In the event of a release or
other environmental emergency or any other emergency at the Premises
Behringwerke shall have the right to enter the Premises for purposes of
responding to such release or emergency at any time without giving VuCo
GmbH & Co. notice in advance.
21.2 The access to the Premises shall be governed by Art. 11 of the Master
Service Agreement.
21.3 VuCo GmbH & Co. may only set-off (AUFRECHNUNG), and exercise rights of
retention (ZURUCKBEHALTUNG), regarding claims against the rent or ancillary
costs if these claims are undisputed between the parties or acknowledged by
Behringwerke or confirmed by a non-appealable decision.
21.4 Any amendment, cancellation or supplement of a provision of this Agreement,
including this Art. 21.4 and any notification under this Agreement must be
in writing in order to be valid, unless more stringent requirements as to
the form are stipulated by the applicable law.
21.5 This Agreement embodies the entire agreement between the parties hereto
with regard to the subject matter hereof and there have been no agreements,
representations or warranties between the parties with regard to the
subject matter hereof other than those set forth or provided for herein.
21.6 The Annexes hereto are integral parts of this Agreement, and all references
herein to this "Agreement" shall also include the Annexes.
21.7 If any provision of this Agreement is held to be prohibited by or invalid,
such provision will be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement. To the extent that a provision is
17
ineffective or invalid, it shall be replaced by an effective and valid
provision which comes as close as possible to the economic purpose of the
ineffective or invalid provision.
__________, this ___ day of __________, 1996
BEHRINGWERKE AG [VuCo GmbH & Co.]
______________________________ ______________________________
By: By:
Title: Title:
Annex 1.1.(a) to Lease Agreement
------------------------------------------------------------------------------
Usage by Vaccine Unit
-------------------------------------------
2
Building % m
------------------------------------------------------------------------------
H 6 19,5 663
------------------------------------------------------------------------------
H 10 30,0 1058
------------------------------------------------------------------------------
H 12 61,0 2312
------------------------------------------------------------------------------
H 15 51,0 ?
------------------------------------------------------------------------------
Z 20 6,0 33
------------------------------------------------------------------------------
Z 21 40,0 690
------------------------------------------------------------------------------
Z 25 6,2 404
------------------------------------------------------------------------------
Z 26/30 19,9 1287
------------------------------------------------------------------------------
H 33 49,9 1205
------------------------------------------------------------------------------
H 38 25,8 66
------------------------------------------------------------------------------
M 544 10,0 49
------------------------------------------------------------------------------
H 70 0,3 ?
------------------------------------------------------------------------------
H 11 75,0 1734
------------------------------------------------------------------------------
H 21 50,0 2727
------------------------------------------------------------------------------
H 26 100,0 1565
------------------------------------------------------------------------------
H 28 75,0 5400
------------------------------------------------------------------------------
H 32 66,0 515
------------------------------------------------------------------------------
H 34 80,0 317
------------------------------------------------------------------------------
M 218 40,0 592
------------------------------------------------------------------------------
M 537 100,0 1440
------------------------------------------------------------------------------
ANNEX 1.4 (b)
TO THE PURCHASE AGREEMENT
PARTNERSHIP AGREEMENT
OF
CHIRON BEHRING BIOCINE GmbH & CO. KG
(FORMER: BEHRING VAKZINE GmbH & CO. KG)
BETWEEN
BEHRINGWERKE AG
AND
32. CORSA VERWALTUNGSGESELLSCHAFT mbH ("32.CORSA GmbH")
AND
31. CORSA VERWALTUNGSGESELLSCHAFT mbH ("31.CORSA GmbH")
In consideration of the Purchase and Assignment Agreement between
Behringwerke AG and 31. Corsa GmbH (the "Purchase Agreement"), the
Contribution Agreement between Behring Vakzine GmbH & Co KG and Behringwerke
AG and the Shareholders' Agreement between Behringwerke and 3 1. Corsa GmbH.
the Parties to this Agreement agree to the following terms of their
partnership:
1. NAME, REGISTERED OFFICE
1.1 The name of the Partnership shall be
CHIRON BEHRING BIOCINE GmbH & CO. KG
1.2 The Partnership has its registered office in Marburg.
2. PURPOSE OF THE PARTNERSHIP
2.1 The purpose of the Partnership is the development, production and
distribution of pharmaceutical products, in particular human
vaccines.
2
2.2 The Partnership is entitled to take all actions which are necessary
or appropriate to further the purpose of the Partnership directly or
indirectly.
2.3 The Partnership is entitled to establish other enterprises and
branches within Germany and other countries or to acquire other
business enterprises, including partnerships, thereon.
3. PARTNERS; PARTNERSHIP CAPITAL
3.1 The General Partner is 32.Corsa GmbH. The General Partner does not
make a capital contribution and does not participate in the capital
of the Partnership.
3.2 The Limited Partners of the partnership are
3.2.1 Behringwerke AG with a partnership interest of 51%
3.2.2 31. Corsa GmbH with a partnership interest of 49%.
3.3 The capital of the Partnership has been or will be contributed in
kind by Behringwerke AG pursuant to be Contribution
Agreement prior to the transfer of the 49% interest in the
Partnership pursuant to the Purchase Agreement. The capital
contribution of Behringwerke under the Contribution Agreement is
fixed and may not be withdrawn.
3.4 The capital contribution of the Limited Partners to be registered in
the commercial register (Hafteinlage) shall be:
3.4.1 Behringwerke AG DM 2,550,000 (in words: Deutsche
▇▇▇▇ two million five hundred fifty thousand)
3.4.2 31. Corsa GmbH DM 2,450,000 (in words: Deutsche
▇▇▇▇ two million four hundred fifty thousand)
3
3.5 The capital accounts I and II determine the interest of each of the
Partners in the Partnership ("Partnership Interest").
4. PARTNER ACCOUNTS
4.1 For each partner,a capital account I, a capital account II, a
reserve account, a loss carry forward account and a transaction
account shall be maintained.
4.2 The contribution to be registered in the commercial register
shall be booked into the capital account I of each of the Limited
Partners. This capital account is fixed. Pursuant to the
Contribution Agreement Behringwerke has contributed DM 5,000,000
(in words: Deutsche ▇▇▇▇ five million) in kind to the capital
account I of Behringwerke, of which 49 % will be transferred to
the capital account I of 31. Corsa GmbH.
4.3 The remainder of the capital contribution of Behringwerke in
accordance with the Contribution Agreement shall be booked into
the capital account II of Behringwerke.
4.3.1 49 % of such capital is transferred according to the
Purchase Agreement to the capital account II of 31.
Corsa GmbH.
4.3.2 Any future contribution of Behringwerke to the
Partnership pursuant to the Contribution Agreement will
be booked at 51% into the capital account II of
Behringwerke and at 49% into the capital account II of
31. Corsa GmbH.
4.3.3 The contributions to the capital accounts II are fixed
and may not be withdrawn by either Partner.
4.4 Profits of the Partnership which are not distributed are booked
into the reserve account of each Partner in proportion to their
Partnership Interest.
4.5 Losses attributable to each Partner shall be booked into the
loss-carry-forward account of each Partner in proportion to their
Partnership Interest.
4
4.6 Distributable profit shares, withdrawals, compensation for
services rendered, commissions, other than commissions pursuant
to clause 4.7 of the Purchase Agreement, which shall be paid to
Behringwerke in accordance with the Purchase Agreement,
reimbursement of expenses, interest and all other payments
between the Partnership and the Partners shall be booked into the
respective transaction accounts.
4.7 In addition, separate loan accounts shall be kept to the extent
Partners grant loans to the Partnership.
4.8 The capital accounts I and II, the reserve accounts and the
transaction account shall not bear interest. Debit and credit
balances of loan accounts, if any, shall bear interest at the rate
specified in the relevant loan agreement, if any, or at due year
FIBOR.
5. FISCAL YEAR, ANNUAL FINANCIAL STATEMENTS; INDEMNIFICATION
5.1 The fiscal year runs from January 1 of each year to December 31.
5.2 Within two months after the end of each fiscal year,the General
Partner shall prepare the annual financial statements (annual
balance sheet and profit and loss statements) for the preceding
fiscal year and shall promptly submit and explain the annual
financial statements to the Advisory Board members and to the
appointed auditors for the purpose of examination.
5.3 With respect to the structure (Gliederung) and evaluation
(Bewertung), the financial statements shall comply with such
applicable for corporations (Kapitalgesellschaften) pursuant to
German generally accepted accounting principles ("GAAP"), a
supplement (Anhang) and situation report (Lagebericht) are not
necessary. As a matter of principle, the financial statements
must comply with the applicable provisions of profit
determination pursuant to German Income Tax Law
(einkommensteuerliche Gewinnermittlung), unless compulsory
commercial law provisions, this Partnership Agreement, or
partnership resolutions provide otherwise.
To the extent that assessments by the tax authorities require a
revision of the financial statements, only such revised financial
statements shall govern rights
5
5.4 To the extent that assessments by the tax authorities require a
revision of the financial statements, only such revised financial
statements shall govern rights and duties of the parties
hereunder. To the extent that such tax assessment requires a
revision of the financial statements for several years, it is for
internal purposes sufficient to amend the last financial
statement. The distribution of profits pursuant to clause 6.2
shall be adapted for all financial statements subject to such
revision.
5.5 The financial statements shall be audited. Auditor may only be
an internationally recognized Wirtschaftsprufungsgesellschaft
acceptable to all parties hereof.
5.6 Upon approval of the financial statements by the Advisory Board
and the Partners' Meeting, they shall be signed by the
Geschaftsfuhrer of the General Partner.
5.7 The annual financial statements shall also be prepared in
accordance with U.S. GAAP.
5.8 Each Limited Partner may also, without approval of the General
Partner, exercise information rights and controlling rights
pursuant to sects. 118, 166 Commercial Law (HGB) whereby
each Limited Partner can exercise such rights through a third
person who is bound by a professional confidentiality
obligation.
6. Distribution of Profits and Losses
6.1 The Partners shall share in the profits and losses as calculated
after deduction of the expenses of the General Partner and of any
compensation otherwise due to the Partners in the ratio of their
Partnership Interests. Regardless of the consummation of any
transfer of the 51% Partnership Interest from Behringwerke AG to
31. Corsa GmbH pursuant to the Purchase Agreement (i.e.,
exercise of Chiron Call Option or Behring Put Option), 31. Corsa
GmbH shall at any time indemnify Behringwerke AG for any tax
obligations relating to tax periods after the Closing Date of
Behringwerke AG stemming from its Partnership Interest unless
covered by clause 6.2; the indemnification
6
is limited to tax claims relating to trade tax and value added
tax but shall in no way include capital gain tax.
6.2 Profit shares necessary to balance withdrawals of Partners for
tax payments shall be booked on the transaction account. The
remainder of the profits shall be booked into the reserve
accounts or the loss carry forward accounts as appropriate,
unless the Partners unanimously provide otherwise.
6.3 As long as a loss carry forward exists in the loss carry forward
accounts, it shall be compensated by subsequent profits. Only
thereafter may any profit shares be booked into the transaction
account or the reserve accounts.
7. WITHDRAWALS
7.1 Each Partner may request withdrawals only from credit balances on
its transaction account.
7.2 Any withdrawals in excess thereof shall require a resolution by
the Partners.
8. MANAGEMENT, REPRESENTATION
8.1 The General Partner shall solely be entitled and shall have the
sole responsibility to manage and represent the Partnership.
The General Partner shall obtain the Advisory Board's approval
for all business decisions which are of material importance to
the Partnership, including, but not limited to, approval of the
annual budget and the following matters:
8.1.1 sale or acquisition of a company, parts of a company,
business (Betriebe) or parts of a business
(Betriebsteile) or entering into, or termination of
company lease agreements (Betriebspachtvertrage):
8.1.2 sale, acquisition or encumbrance of controlling
interests in any other company or business:
7
8.1.3 taking up new area of business and activities or
cessation of existing areas of business and activities;
8.1.4 entering into, amendment and termination of enterprise
contracts (Unternehmensvertrage);
8.1.5 acquisition, sale and transfer, encumbrance and pledge
of fixed assets, including real property, buildings and
rights of real property nature (if the transaction
value in each individual case is in excess of DM
500,000 (in words: Deutsche ▇▇▇▇ five hundred
thousand);
8.1.6 entering into or amending any contract with a value of
more than DM 500,000 (in words: Deutsche ▇▇▇▇ five
hundred thousand);
8.1.7 taking up and granting of loans and credits,
assumptions of guarantees, strict guarantees and other
liabilities of similar nature if the transaction value
in each case is in excess of DM 500,000 (in words:
Deutsche ▇▇▇▇ five hundred thousand);
8.2 The approval of the Advisory Board to be obtained pursuant to the
foregoing may also be made in form of a general authorization for
particular types of the aforementioned transactions and matters.
Any such general authorization must precisely describe the
transactions and matters in question as well as the purpose and
the time frame in which they must be completed.
9. ADVISORY BOARD
9.1 The Partnership shall have an Advisory Board. The Advisory Board
shall be composed of four (4) members. Each Limited Partner
shall appoint two members (including one senior member).
9.2 The Advisory Board shall advise the management and shall consider
for approval the consents required according to clause 8.
8
9.3 The Advisory Board shall resolve its decision with a simple
majority of its votes. In the event that a majority decision
cannot be reached, the following special procedures shall be used
to break a deadlock:
9.3.1 the senior Advisory Board member appointed by
Behringwerke, following reasonable consultation with the
senior member appointed by the other party, shall have
the decisive vote in matters relating to the following
agreements:
[CONFIDENTIAL TREATMENT REQUESTED]
9.3.2 The senior Advisory Board member appointed by Chiron,
following reasonable consultation with the senior member
appointed by the other party, shall have the decisive
vote in all other matters referred to the Advisory Board.
9.4 The Advisory Board shall meet at least every 14 months or whenever
requested by the CEO or by any of the senior members of the Advisory
Board. The meetings can be held by telephone or video conference.
Meetings shall convene with a notice period of seven (7) days if
not otherwise unanimously agreed. Action can be taken by unanimous
written consent. The Advisory
9
Board may adopt its own internal rules of procedure to be adapted
from time to time.
10. Partners' Resolutions, Partners' Meeting
10.1 The decisions reserved to the Partners by law or by the
Partnership Agreement regarding the affairs of the Partnership
shall be made by resolutions of the Partners.
10.2 Partners' resolutions shall be adopted in partners' meetings
unless the General Partner requests that a resolution is adopted
in writing, by telex, by telefax and no objection is raised by a
Limited Partner.
10.3 The partners' meeting shall be called by the General Partner in
its own right or upon request of any Limited Partner. The
General Partner may join the partners' meetings unless the
partners request otherwise.
10.4 The partners' meeting shall have a quorum when at least 75% of
the Limited Partnership Interest is represented. If a properly
convened meeting has no quorum within one (1) hour of the time
for which it was convened, the meeting shall automatically be
adjourned and reconvened for the same time at the same place five
business days later. Such reconvened meeting shall have a quorum
if at least one Limited Partner is present. All resolutions of
the partners' meeting require a simple majority of the votes
present or represented at the meeting unless a higher majority is
required by law.
10.5 Each DM 1,000 of the Limited Partnership is equivalent to one
vote.
10.6 Except as otherwise provided in this Partnership Agreement, the
Partners may also vote in matters of their own.
10.7 Resolutions of the Partners shall be recorded in the minutes of
the Partners' meeting or, in case of resolutions adopted outside
of such meetings, in separate minutes to be drawn up and to be
signed by the General Partner.The
Partners shall in each case receive copies of such minutes without
delay.
10
10.8 Partners may only challenge the validity of Partners' resolutions
within a period of one month following adoption in a Partners'
meeting in which they have participated, or following receipt of
the minutes recording the Partners' resolution by filing suit.
After expiration of the above period, any defect of a Partners'
resolution shall be deemed cured.
11. TRANSFER OF PARTNERSHIP INTERESTS
The Partners agree that any transfer, assignment or encumbrance of the
Partnership Interest or parts thereof requires the prior written
consent of the other Partner, which shall not be unreasonably withheld,
provide that, (i) no consent shall be required if the Limited
Partnership interests are transferred, assigned or encumbered to, or
for the benefit of, a wholly owned subsidiary of the respective Partner
and which will remain such a wholly owned subsidiary of a Partner, and
(ii) such Partner has proven to the other Partner by submission of a
written agreement that such subsidiary has agreed to be bound by be
terms of this Agreement and the Purchase Agreement. For the avoidance
of doubt: no such transfer or assignment by 31. Corsa GmbH may in any
respect impair Behringwerke AG's rights under the Purchase Agreement in
particular, its rights against the Guarantor for payment of the Option
Purchase Price in case the Chiron Call Option or the Behring Put Option
is exercised.
12. Bankruptcy
In the event a bankruptcy or judicial composition proceeding is opened
with respect to the assets of a Partner, the membership of such Partner
shall terminate as soon as the underlying court order becomes final.
13. TERM OF THE PARTNERSHIP
13.1 The partnership shall commence upon its being established.
11
13.2 The partnership is established for an indefinite period of time;
the partnership may be terminated for the first time with a
written notice of 6 months to December 31, 2001.
If any of the Partners ceases to be a member of the partnership
and his Partnership Interest is not transferred to a successor,
the other Partner may take over the Partnership Interest in whole
or in part.
13.3 In case of dissolution of the partnership, the liquidation shall
be effected in accordance with the statutory rules by
liquidators. Each Limited Partner participates in the
liquidation surplus in the ratio of his Limited Partnership
Interest.
13.4 Effective as of January 1, 2002, this Partnership Agreement shall
be adjusted to reflect the German Commercial Code (HGB).
14. WITHDRAWAL COMPENSATION
In the event a Partner withdraws from the partnership or the
membership of this Partner is terminated due to Sect. 12, such Partner
shall receive a withdrawal compensation . The withdrawal compensation
shall be the nominal amount of the Partnership Interest of the
withdrawing partner plus the balance in his transaction account. The
withdrawal compensation is payable in equal installments over a period
of five years.
15. Compensation of General Partner
15.1 To the extent the General Partner's business activities are
exclusively activities in connection with or on behalf of the
Partnership, the Partnership shall reimburse the General Partner
for all expenses incurred therewith.
15.2 In addition to clause 15. 1, the General Partner shall receive at
the end of each fiscal year of the Partnership a compensation in
the amount of 2 % of the General Partner's net equity value as of
the beginning of such financial year.
15.3 Any compensation paid to the General Partner shall be booked as
cost in the profit and loss statements of the Partnership.
12
16. CAPITAL INJECTION; SHAREHOLDER LOANS
16.1 Under no circumstances Behringwerke AG is obliged to inject any
capital into the partnership or to grant any shareholder loans.
16.2 31. Corsa GmbH undertakes the responsibility to ensure that the
Partnership shall have sufficient cash to meet all its
obligations for at least a period of 6 (six) months after the
Closing Date as defined in the Purchase Agreement.
17. CONCLUDING PROVISIONS
17.1 The Partners shall keep all confidential information received
from the partnership or from the other Partners in strict
confidence without limitation in time, even after their
withdrawal from the partnership.
17.2 In case individual provisions of the Partnership Agreement are or
become invalid in whole or in part, the validity of the remaining
provisions shall remain unaffected thereby. The parties shall
instead of the invalid provision agree on an appropriate valid
provision which approximates best the intent and purpose of the
invalid provision.
17.3 This Partnership Agreement and its interpretation shall be
governed by the laws of the Federal Republic of Germany. Court
venue shall be Marburg for all disputes among the Partners.
17.4 31. Corsa GmbH shall hold Behringwerke free and harmless from any
damages and shall actually conduct all relevant negotiations and
court proceedings on behalf of Behringwerke, as a consequence of
any withdrawals from the capital account I caused or otherwise
initiated by 31. Corsa GmbH, including withdrawals after exercise
of the Chiron Call Option or the Behring Put Option and shall
hold Behringwerke free and harmless; this also applies in case of
withdrawals necessary for the satisfaction of clause 4.7 of the
Purchase Agreement.
ANNEX 3.4
to the Purchase Agreement
SHAREHOLDERS' AGREEMENT
For VuCo GmbH and VuCo GmbH & Co.
---------------------------------
BETWEEN
Behringwerke AG
("Behringwerke")
AND
31. CORSA Verwaltungsgesellschaft mbH
("Buyer")
(Behringwerke and the Buyer each also referred to as "Shareholder" or
"Party")
2
INTRODUCTION
A. Pursuant to the purchase and assignment agreement, of which this Agreement
forms an annex (the "Purchase Agreement"), Behringwerke has sold to Buyer a
49% interest in VuCo GmbH and VuCo GmbH & Co. (hereinafter collectively the
"Companies").
B. With regard to the exercise of Behringwerke's and the Buyer's rights as
shareholders and partners of the Companies, the Parties wish to enter into
this Shareholders' Agreement in order to coordinate their cooperation with
regard to the management of the Companies.
C. All terms defined in the Purchase Agreement shall have the same meaning in
this Shareholders' Agreement.
In consideration hereof the parties agree as follows:
1. STRUCTURE OF THE COMPANIES
1.1 VuCo GmbH & Co. is organized as a limited partnership with VuCo GmbH
as its sole general partner. VuCo GmbH & Co. will be exclusively
managed and represented by VuCo GmbH.
1.2 VuCo GmbH will be managed by a Chief Executive Officer
(GESCHAFTSFUHRER). The Chief Executive Officer shall not be bound by
fiduciary obligations vis-a-vis any particular Shareholder other than
those applicable vis-a-vis all Shareholders pursuant to law, the
Articles of Association of VuCo GmbH (the "Articles"), the Partnership
Agreement of VuCo GmbH & Co. (the "Partnership Agreement") and this
Shareholders' Agreement.
1.3 VuCo GmbH & Co. shall have an Advisory Board (BEIRAT).
1.4 To the extent the Companies will be required to establish an
AUFSICHTSRAT by matter of law, the parties hereto will pursue the
intent of this Agreement regardless of such AUFSICHTSRAT.
3
2. RULES GOVERNING THE SHAREHOLDERS' MEETINGS AND PARTNERS' MEETINGS
2.1 The shareholders' meetings of VuCo GmbH shall be convened at regular
intervals not exceeding 14 months and upon no less than seven (7)
business days notice in writing, such notice to include an agenda
specifying the matters to be resolved.
2.2 The shareholders' meetings of VuCo GmbH shall be called in by the
Chief Executive Officer of VuCo GmbH in its own right or upon request
of any Shareholder. The Chief Executive Officer may join the
shareholders' meetings, unless any Shareholder requests otherwise.
2.3 The shareholders' meeting shall have a quorum when at least 75 % of
the stated capital of VuCo GmbH are represented. If a properly
convened meeting has no quorum within 1 (one) hour of the time for
which it was convened, the meeting shall automatically be adjourned
and reconvened for the same time at the same place five business days
later. Such reconvened meeting shall have a quorum if at least one
Shareholder is present. All resolutions of the shareholders' meeting
require a simple majority of the votes, present or represented at the
meeting, unless a higher majority is required by law.
2.4 For the partners' meetings of VuCo GmbH & Co., the foregoing
provisions shall apply MUTATIS MUTANDIS.
3. PRINCIPLES OF MANAGEMENT
3.1 The management of VuCo GmbH shall obtain the Advisory Board's approval
for all business decisions which are of material importance to VuCo
GmbH or VuCo GmbH & Co., including, but not limited to, approval of
the annual budget and plan, and the following matters:
(a) sale or acquisition of a company, parts of a company, business
(BETRIEBE) or parts of a business (BETRIEBSTEILE) or entering
into, or termination of company lease agreements
(BETRIEBSPACHTVERTRAGE);
4
(b) sale, acquisition or encumbrance of controlling interests in any
other company or business;
(c) taking up new area of business and activities or cessation of
existing areas of business and activities;
(d) entering into, amendment and termination of enterprise contracts
(UNTERNEHMENSVERTRAGE);
(e) acquisition, sale and transfer, encumbrance and pledge of fixed
assets, including real property, buildings and rights of a real
property nature, if the transaction value in each individual case
is in EXCESS of DM 500,000 (in words: Deutsche ▇▇▇▇ five hundred
thousand);
(f) entering into or amending any contract with a value of more than
DM 500,000 (in words: Deutsche ▇▇▇▇ five hundred thousand);
(g) taking up and granting of loans and credits, assumption of
guarantees, strict guarantees and other liabilities of the
similar nature if the transaction value in each case is in excess
of DM 500,000 (in words: Deutsche ▇▇▇▇ five hundred thousand);
(h) any of the transactions and matters listed and referred to under
sub-para. (a) through (g) above carried out by VuCo in its
capacity as general partner of VuCo GmbH & Co. for and on behalf
of VuCo GmbH & Co.
3.2 The approval of the Advisory Board to be obtained pursuant to para. 3.1
above may also be made in form of a general authorization for particular
types of the aforementioned transactions and matters. Any such general
authorization must precisely describe the transactions and matters in
question as well as the purpose and the time frame in which they must be
completed.
5
4. ADVISORY BOARD
4.1 The Advisory Board shall be composed of 4 (four) members. Each Party
shall appoint two members (including one senior member).
4.2 The Advisory Board shall advise the management and shall consider for
approval the consents required according to Sect. 3.1. The Chief
Executive Officer of VuCo GmbH shall be nominated by the Advisory
Board to the Shareholders for appointment. The Advisory Board shall
negotiate and determine the employment contract with the Chief
Executive Officer.
4.3 The Advisory Board shall resolve its decisions with a simple majority
of its votes, In the event that a majority decision cannot be reached,
the following special procedures shall be used to break the deadlock:
(a) the Senior Advisory Board Member appointed by Behringwerke,
following reasonable consultation with the Senior Member
appointed by the other party. shall have the decisive vote in
matters relating to the following agreements:
[CONFIDENTIAL TREATMENT REQUESTED]
6
(b) the Senior Advisory Board Member appointed by Buyer, following
reasonable consultation with the Senior Member appointed by the
other party, shall have the decisive vote in all other matters.
4. The Advisory Board shall meet at least every 14 months or whenever
requested by the Chief Executive Officer or by any of the senior
members of the Advisory Board. The meetings can be held by telephone
or video conference. Meetings shall convene with a notice period of 7
(seven) days if not otherwise unanimously agreed. Action can be taken
by unanimous written consent. The Advisory Board may adopt its own
internal rules of procedure to be adapted from time to time.
5. EXERCISE OF VOTING RIGHTS
5.1 Shareholders' resolutions or partners' resolutions in shareholders'
meetings, as the case may be, regarding the following matters shall
require a unanimous vote of the shareholders or the partners:
(a) matters concerning capital increases and capital decreases.
(b) appointment of the Chief Executive Officer.
(c) appointment of the Companies' auditors, determination
(FESTSTELLUNG) of the annual financial statements and profit
distributions including distributions of reserves (RUCKLAGEN):
(d) exoneration (ENTLASTUNG) of the managing directors.
(e) amendments of the Articles or the Partnership Agreement to the
extent that such amendments relate to, or have an impact on, any
of the matters stipulated, mentioned or referred to in this
Shareholders' Agreement:
(f) transformation (UMWANDLUNG) of the Companies as defined in Sec. 1
Umwandlungsgesetz or dissolution of the Companies:
7
(g) entering into, amendment and termination of enterprise contracts
(UNTERNEHMENSVERTRAGE);
(h) transfer of any decision powers of shareholders' meeting of VuCo
GmbH or the partners"meeting of VuCo GmbH & Co. to any
committees;
(i) the sale or acquisition of assets having a value in excess of DM
50 million;
(j) debt financing in excess of DM 50 million, other than financing
of accounts receivable;
(k) matters relating to the Overview Agreement after the consent and
approval contemplated by section 5.1.4 of the Purchase Agreement
has been obtained;
(1) matters relating to the Sales Promotion and Consignment Agreement
between Behringwerke and Centeon Pharma dated September 28, 1995
and effective as of July 1, 1995.
5.2 If Behringwerke and Buyer are unable in two consecutive shareholders'
meetings or partners' meetings, as the case may be, to reach an
unanimous decision on matters requiring their unanimous vote and if
they have not been able to resolve the matter within 30 days after the
date of the second shareholders' meeting or partners' meeting, then
Behringwerke and the Buyer can submit this matter to the respective
member of the management board (VORSTAND) of Hoechst AG in charge of
the business activities conducted by Behringwerke and of Guarantor for
resolution. They shall meet as necessary in order to discuss and
resolve the matter by mutual agreement considering, if feasible, the
use of expert advisors.
5.3 With regard to matters other than those listed and referred to in
para. 4.3.a and 5.1 above, Behringwerke shall exercise its voting
rights in shareholders' meeting of VuCo GmbH and partners' meetings of
VuCo GmbH & Co. consistent with the manner in which the Buyer
exercises its voting rights it being under-
8
stood that with regard to the matters listed and referred to in para
5.1 above, Behringwerke may exercise its voting rights at its free
discretion.
6. TRANSFER, ASSIGNMENT OR ENCUMBRANCE OF SHARES OR INTERESTS
The Parties agree that any transfer, assignment or encumbrances of shares
or interests in VuCo GmbH or VuCo GmbH & Co. or parts thereof requires the
prior written consent of the other shareholder or partner not to be
unreasonably withheld, PROVIDED THAT no consent shall be required if (i)
the shares or interests are transferred, assigned or encumbered to, or for
the benefit of a wholly-owned subsidiary of the respective
shareholder/partner and (ii) such shareholder/partner has proven to the
other shareholder/partner by submission of a written agreement that such
subsidiary has agreed to be bound by the terms of this Agreement pursuant
to Sect. 11.
7. AMENDMENTS OF ARTICLES OF ASSOCIATION AND PARTNERSHIP AGREEMENT
Insofar as amendments of the Articles and the Partnership Agreement or any
other resolutions are necessary or expedient for the execution and
implementation of the provisions of this Shareholders' Agreement,
Behringwerke and the Buyer shall procure that the appropriate resolutions
are passed and all other necessary actions are taken promptly after the
Closing Date.
8. Financials; Information
8.1 The financial statements of VuCo GmbH and VuCo GmbH & Co. shall be
audited by an auditor (WIRTSCHAFTSPRUFER) nominated by the
shareholders' meeting.
8.2. Each Shareholder shall have the right to inspect (either itself or by
advisors subject to a professional obligation of secrecy) during
normal business hours (and at other times by agreement) all books,
records and other information maintained for or by the Companies and
(to the extent legally permissible) those maintained for or by its
associated undertakings. The right to inspect shall include the right
to take copies. Each Shareholder shall also have the right of
9
access to the Companies' premises (either itself or by advisors
subject to a professional obligation of secrecy) during normal
business hours (and otherwise by agreement) for the above purpose and
to inspect and review the premises.
9. Duration
This Agreement shall take effect as of the Closing Date and shall expire
(a) as of the date of notarization of the acceptance of the Behring Put
Option or the Chiron Call Option, as the case may be, pursuant to Art.
3 of the Purchase Agreement, or
(b) as of the date at which the right of Behringwerke to exercise the
Behringwerke Put Option and the right of the Buyer to exercise the
Chiron Call Option pursuant to Art. 3 of the Purchase Agreement has
expired, or
(c) at such other date on which the Parties have mutually agreed.
10. NO PARTNERSHIP
None of the provisions of this Agreement shall be deemed to constitute a
partnership between the Shareholders and neither of them shall have any
authority to bind the other in any way.
11. SUCCESSORS AND ASSIGNMENTS
This Agreement shall enure for the benefit of and be binding on the
respective successors in title and permitted assignees of each Shareholder
which shall procure prior to the transfer of any of its Shares that each
such transferee shall enter into a written agreement with the other
Shareholders by which the transferee agrees to be bound by terms identical,
mutatis mutandis, to the terms of this Agreement (including the terms of
this clause as regards any subsequent transfer of the Shares).
Annex 4.6 to the
Purchase Agreement
[CONFIDENTIAL TREATMENT REQUESTED]
(1 Page)
Annex 4.7 to the
to the Purchase and Assignment Agreement
TERMS AND CONDITIONS FOR COMMISSION
1. Under Art. 4.7 of the Purchase and Assignment Agreement, Buyer agrees to
pay Behringwerke, in addition to the Fixed Cash Purchase Price and the
Option Purchase Price, a yearly Commission on the sales of Guarantor's
and its affiliates' vaccine products listed on ANNEX 1 hereto for use in
Germany during the years 1997 through 2001, calculated as [CONFIDENTIAL
TREATMENT REQUESTED] of the excess of net sales over the following
forecast:
- 1997: DM [CONFIDENTIAL TREATMENT REQUESTED]
- 1998: DM [CONFIDENTIAL TREATMENT REQUESTED]
- 1999: DM [CONFIDENTIAL TREATMENT REQUESTED]
- 2000: DM [CONFIDENTIAL TREATMENT REQUESTED]
- 2001: DM [CONFIDENTIAL TREATMENT REQUESTED]
Such figures shall be adjusted for actual inflation on the basis of a
consumer price index (four-person-households average income) from
Closing Date to December 31 of each of the above-mentioned years.
2. Buyer shall submit to Behringwerke by March 31 of the years 1997 through
2002 an auditable calculation and documentation of the total sales of
Buyer's vaccine products in Germany.
3. The Commission shall be due and payable on March 31 of each respective
year. Payment shall be made in Deutsche ▇▇▇▇ by wire transfer free of
cost to the account of Behringwerke listed in clause 4.4 of the Purchase
and Assignment Agreement in time to be received on the respective due
date. Late payments shall bear interest at discount rate plus three
basis points.
4. Behringwerke's experts (as designated by Behringwerke and reasonably
acceptable to Buyer) shall be entitled to audit, together with the
respective department of
2
Buyer, any such calculations presented by Buyer, shall have reasonable
access to the business sites of Behring Vakzine GmbH & Co. or any
successor and to all books, records and other documents relating to such
calculation, and shall obtain from Buyer all information reasonably
requested. The persons performing such audit on Behringwerke's behalf
shall treat confidential any information that they had access to, shall
use such information solely for the purpose of confirming the amounts due
hereunder, and shall report to Behringwerke's management exclusively.
5. To the extent an audit pursuant to clause 3 above reveals any differences
from the calculation presented by Buyer, the balance shall be settled in
accordance with clause 3 within four weeks after the parties agreed on
such difference.
6. As used herein, "net sales" means the amount invoiced for sales to
unaffiliated third parties of Guarantor, less (i) discounts, rebates,
chargebacks and allowances, (ii) returns, credits, recalls and
withdrawals, (iii) freight, insurance and packaging, (iv) V.A.T. and
other excise taxes, duties and other governmental charges, all to the
extent any of these are applicable to such sales.
Annex 1 of
Annex 4.7 of the Purchase Agreement
[CONFIDENTIAL TREATMENT REQUESTED]
(1 page)
Annex 7.1.16
to the Purchase Agreement
[CONFIDENTIAL TREATMENT REQUESTED]
(1 page)
Annex 7.1.18
to Purchase Agreement
[CONFIDENTIAL TREATMENT REQUESTED]
(1 page)
Annex 7.1.19
to the Purchase Agreement
[CONFIDENTIAL TREATMENT REQUESTED]
(2 pages)
ANNEX 8
to Purchase Agreement
Use of name:
- Chiron Behring Biocine GmbH
- Chiron Behring Biocine GmbH & Co. KG
Use of logo:
BEHRING
ANNEX 11
to Purchase Agreement
HOECHST AKTIENGESELLSCHAFT
Chiron Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ February 6, 1996
Ladies and Gentlemen:
Referring to the Purchase and Assignment Agreement to be entered between Chiron
GmbH and Behringwerke Aktiengesellschaft relating to the human vaccine business
of Behringwerke Aktiengesellschaft we confirm the following:
1. For a period of five (5) years from the Closing Date of the aforementioned
Purchase and Assignment Agreement (the "Protected Period") Hoechst and
affiliated companies within the meaning of Section 18 of the German Stock
Corporation Law (Aktiengesetz) will refrain from developing, marketing,
producing, selling or otherwise distributing human prophylactic vaccines
against infectious diseases.
2. This obligation of non-competition shall be applicable worldwide, but for
the following:
Hoechst Ag owns a [Confidential Treatment Requested]. In addition, certain
Hoechst AG affiliates manufacturer and sell human vaccine products
[Confidential Treatment Requested]. Hoechst commits that none of these
aforementioned affiliates will [Confidential Treatment Requested].
3. Hoechst AG shall continue with VuCo GmbH & Co. the existing arrangements
between Behringwerke and Hoechst AG with respect to the distribution of
human vaccine products outside Germany at arm's length terms to be agreed
upon, for not less than [Confidential Treatment Requested].
ANNEX 11
4. In the event that, within 5 years from the Closing Date, VuCo proposes to
have developed a human vaccine that is covered by an existing Hoechst AG
patent, VuCo shall have the right to obtain a license under such patent for
such product on commercially reasonable terms.
5. Hoechst hereby consents to clause 3.5 of the Contribution Agreement as it
relates to Hoechst patents.
Yours Sincerely,
HOECHST AKTIENGESELLSCHAFT
[CONFIDENTIAL TREATMENT REQUESTED]
[Certain confidential information has been omitted from the Agreement and filed
separately with the Securities and Exchange Commission pursuant to a request by
Registrant for confidential treatment pursuant to Rule 24b-2. The omitted
confidential information has been identified by the following statement:
"CONFIDENTIAL TREATMENT REQUESTED".]
CLOSING AGREEMENT
by and among
Behringwerke Aktiengesellschaft
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇
represented by its members of the Management Board,
Prof Dr. ▇▇. ▇▇▇ ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(hereinafter "Behringwerke")
- on the one side -
and
Chiron Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, U.S.A.
represented by its Chairman of the Board,
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(hereinafter "Chiron")
and
31. CORSA Verwaltungsgesellschaft mbH
represented by power of attorney by
▇▇. ▇▇▇▇ ▇▇▇▇,
(hereinafter "31. CORSA")
- on the other side -
(Behringwerke, Chiron and 31. CORSA are hereinafter collectively referred to as
the "Parties" or, individually, as the "Party", as the context requires.)
PREAMBLE
A. On February 17, 1996, the Parties entered into a Purchase and
Assignment Agreement (Notarized Deed A. Prot. 1996/20 of the notary public
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ in Basle - hereinafter the "Purchase Agreement") with
respect to the transfer 49% of the interests in a newly organized limited
partnership which will continue to operate the human vaccine business of
Behringwerke under the name Chiron Behring GmbH & Co (presently registered
under the name Behring Vakzine GmbH & Co) and the transfer of a share in
the nominal value of DM 24,500 in Chiron Behring Biocine GmbH
Verwaltungsgesellschaft (which will be renamed into and referred to
herein- after as "Chiron Behring GmbH") being the general partner of Chiron
Behring GmbH & Co (hereinafter collectively the "Interests").
B. Under the Purchase Agreement, the effectiveness of the transfer of
the Interests requires the fulfillment of certain conditions. The Parties
now wish to clarify the status of and to modify such conditions.
C. The Parties also wish to amicably settle certain issues which have come
to their attention since the execution of the Purchase Agreement.
NOW, THEREFORE, the Parties agree as follows:
1. FULFILLMENT OF CONDITION
1.1 Behringwerke hereby declares that
(i) Chiron Behring GmbH & Co is holding all official
approvals for the operation of the Business (as defined in
the Purchase Agreement) as currently conducted pursuant to
the ARZNEIMITTELGESTZ, GENTECHNIKGESETZ, TIERSCHUTZGESETZ
and BUNDESSEUCHENGESETZ;
(ii) the Operating Lease Agreement between Behringwerke
and Chiron Behring GmbH & Co will terminate with effect as
of the Closing Date (as defined hereinafter);
(iii)the Contribution Date pursuant to the Contribution Agreement
(all as defined in the Purchase Agreement) has occurred on
April 1, 1996;
(iv) Behring Vakzine GmbH (formerly the Institut fur
Produkttest und Verbrauchsforschung GmbH) is no longer a
general partner of Chiron Behring GmbH & Co and Chiron
Behring GmbH is now the sole general partner;
(vi) the management of Chiron Behring GmbH has agreed to
the split of one of the shares of Behringwerke in Chiron
Behring GmbH with a nominal value of DM 25,000 into two
shares with nominal values of DM 24,500 and DM 500,
respectively, and to the transfer of the DM 24,500 share to
31. CORSA.
1.2 Chiron hereby declares that the necessary merger control
approval for the implementation of the Purchase Agreement has
been granted.
1.3 Subject to the provisions of clause 6, the Parties
mutually waive the condition stated in clause 5.1.4 of the
Purchase Agreement, i.e., [CONFIDENTIAL TREATMENT REQUESTED]
During the interim period until the assignment of [CONFIDENTIAL
TREATMENT REQUESTED] is effected with or without amendments,
Behringwerke shall internally place Chiron Behring GmbH & Co as
it would be if such assignment had been effected as of the Closing
Date (as defined hereinafter).
2. PAYMENT OF THE PURCHASE PRICE
2.1 The Parties are in agreement that 31. CORSA shall pay the
purchase price for the Interests in the amount as agreed in
clause 4 of the Purchase Agreement (i.e., DM 171,813,430.40, of
which DM 313,430.40 represents 49% of the rent under the
Operating Lease Agreement) on July 1, 1996 to be received by,
Behringwerke by 11:00 h on such date on the following bank
account:
COMMERZBANK AG, FRANKFURT A.M.-HOCHST
ACCOUNT NO.: 251 57 57
BANK SORT CODE (BLZ): 500 400 00
Behringwerke hereby warrants that Chiron Behring GmbH & Co has
received prior to July 1, 1996 a rent under the Operating Lease
Agreement (as defined in the Purchase Agreement) for the months
of April through June in an amount of DM 639,653.88 (plus V.A.T.
if applicable). Behringwerke shall promptly deliver to 31 CORSA,
with a copy to Chiron, written evidence (bank statement) of such
receipt.
2.2 Upon receipt of the purchase price, Behringwerke shall
immediately deliver to 31 CORSA a receipt of the purchase price
received. Such receipt shall be forwarded first by telecopy and
then by overnight courier to the attention of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
at Chiron, Emeryville.
3. CLOSING DATE
Under the condition that Behringwerke has received the purchase price for
the Interests as agreed in clause 2 above, the transfer of the Interests
shall be effective as of July 1, 1996, 0:01 h (the "Closing Date").
4. GUARANTEE
In accordance with clause 14.3 of the Purchase Agreement Chiron agrees to
the following:
In the event that Chiron does not exercise the Chiron Call Option by March
31, 1998, and if at that time or any time thereafter the long term credit
rating of Chiron's senior debt securities falls below grade "A" of Standard
& Poor's rating or ▇▇▇▇▇'▇ comparable rating, Chiron will provide a letter
of credit from a commercial bank, acceptable to Behringwerke, or other
credit support fully satisfactory to Behringwerke, in an amount sufficient
to satisfy 31. CORSA's obligation to pay the Option Purchase Price
(assuming Behringwerke exercise the Behring Put Option in March 2001).
The foregoing is deemed to satisfy in full Chiron's obligations under
clause 14.3 of the Purchase Agreement.
[CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATMENT REQUESTED]
6. PARTNERSHIP AGREEMENT
The Parties are in agreement that promptly hereinafter and with effect as
of the Closing Date, Behringwerke, 31. CORSA and Chiron Behring GmbH shall
enter into the Partnership Agreement as agreed in the Purchase Agreement.
The Parties shall promptly procure the necessary filings at the competent
commercial register with respect to the registration of 31. CORSA as a new
limited partner (Kommanditist) in Chiron Behring GmbH & Co.
7. CASH MANAGEMENT
Behringwerke hereby informs Chiron that Hoechst AG has agreed in the time
being and until further notice (which will not be given prior to September
30, 1996) to finance any negative cash flow of Chiron Behring GmbH & Co up
to an aggregate outstanding amount of DM 20,000,000. at an interest rate of
DM LIBOR plus 0. 125 % p.a. for credits with a mutually fixed term not
exceeding six months, and an interest rate equivalent to the then
applicable call money rate plus 0.125% p.a. for call money credits.
Details will be agreed upon for each individual credit in compliance with
the then applicable rules of "Konzeminterner Finanzausgleich" (Group
internal Borrowing and Lending) and/or "Tagesgeld-Aufnahme und Anlage"
(Group internal Call Money Arrangements) of Hoechst AG. Chiron hereby
unconditionally guarantees repayment of any such credit by Chiron Behring
GmbH & Co when due.
8. MISCELLANEOUS
8.1 Unless otherwise expressly stated herein, all terms of the
Purchase Agreement shall remain in force.
[CONFIDENTIAL TREATMENT REQUESTED]
[CONFIDENTIAL TREATMENT REQUESTED]
IN WITNESS HEREOF, the Parties have executed this Closing Agreement in triple
originals by their respective, duly authorized Board Members.
BEHRINGWERKE AKTIENGESELLSCHAFT
Date: June 29, 1996
By:
/s/ ▇▇. ▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------
(Prof. Dr. ▇▇. ▇▇▇ ▇▇▇▇▇▇)
/s/ Bernd Neuefiend
-------------------------------------------------
(▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇)
CHIRON CORPORATION
Date: June 29, 1996
By:
/s/ ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------
(▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇)
31. CORSA VERWALTUNGSGESELLSCHAFT MBH
Date: June 29, 1996
By:
/s/ ▇▇. ▇▇▇▇ ▇▇▇▇
-------------------------------------------------
(▇▇. ▇▇▇▇ ▇▇▇▇)
June 29, 1996
[CONFIDENTIAL TREATMENT REQUESTED]
[Certain confidential information has been omitted from the Agreement and filed
separately with the Securities and Exchange Commission pursuant to a request by
Registrant for confidential treatment pursuant to Rule 24b-2. The omitted
confidential information has been identified by the following statement:
"CONFIDENTIAL TREATMENT REQUESTED".]
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Re: Closing Agreement dated June 29, 1996 between Chiron Corporation, 31 CORSA
and Behringwerke AG
Gentlemen:
As set forth in clause 1.3 of the Closing Agreement, Chiron Corporation and 31
CORSA have agreed to waive the condition stated in clause 5.1.4 of the Purchase
Agreement. Such waiver is conditioned upon the following agreement:
(a) Subject to paragraph (b) below, in the event that [CONFIDENTIAL TREATMENT
REQUESTED] Behringwerke shall fully indemnify Chiron Behring GmbH & Co for
any damage suffered. This damage shall be calculated on the basis of the
time period of [CONFIDENTIAL TREATMENT REQUESTED]
(b) The obligation of Behringwerke to indemnify Chiron Behring GmbH & Co under
paragraph (a) is limited to an amount equal to [CONFIDENTIAL TREATMENT
REQUESTED]
(c) In the event that the [CONFIDENTIAL TREATMENT REQUESTED] are not assigned to
Chiron Behring GmbH & Co by November 30, 1996 each party shall be entitled
to rescind the Closing, in which case Behringwerke shall pay back to 31.
CORSA any purchase price paid plus an interest of 5.125% p.a. and 31. CORSA
shall retransfer to Behringwerke the Interests. Any additional damages by
either party is excluded, other than for damages incurred as a result of a
breach by either party of their obligation under clause d.
June 29, 1996
Behringwerke Aktiengesellschaft
(d) Subject to the foregoing, the Parties will use their best efforts to ensure
that the assignment [CONFIDENTIAL TREATMENT REQUESTED] occurs as soon as
possible and [CONFIDENTIAL TREATMENT REQUESTED].
If the foregoing accurately reflects your understanding of our agreement, please
sign a copy of this letter for our records.
Very truly yours,
CHIRON CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman
31. CORSA Verwaltungsgesellschaft mbH
By: /s/ Dino Dina
--------------------------
Dino Dina, pursuant to a power of attorney
Agreed and Accepted:
BEHRINGWERKE AKTIENGESELLSCHAFT
By: /s/ Dr. ▇▇. ▇▇▇ ▇▇▇▇▇▇
--------------------------
Prof. Dr. ▇▇. ▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇