Preview | Stock Sale and Purchase Agreement |

Document Preview

Stock Sale and Purchase Agreement

Click "Add to Cart" button to purchase document.
Documents are emailed immediately after purchase.
You can also browse documents by title, category, or company... or click here for help finding documents.

Title:

Stock Sale and Purchase Agreement

Entities:

Prestige Brands International, LLC

Date:

2006

Size:

139KB total

Price:

$71

ID:

#2612117

► Purchase & Sale ► Sale & Purchase ► Stock Sale & Purchase Agreements

Start of Preview

STOCK SALE AND PURCHASE AGREEMENT

This Stock Sale and Purchase Agreement (this Agreement) is made as of September 21, 2006, by LIL' DRUG STORE PRODUCTS, INC., an Iowa corporation (Seller), WARTNER USA B.V., a private company with limited liability organized under the laws of the Netherlands (the Company), the Sellers shareholders set forth on the signature page attached hereto (the Shareholders), and MEDTECH PRODUCTS INC., a Delaware corporation (Buyer).

RECITALS

Seller desires to sell, and Buyer desires to purchase, all of the issued and outstanding shares (the Shares) of capital stock of the Company, a wholly-owned subsidiary of Seller, for the consideration and on the terms set forth in this Agreement.

The Shareholders, as the record and beneficial owners of 96.8% of all of the outstanding capital stock of Seller, will indirectly benefit from the sale of the Shares by Seller to Buyer and therefore desire to execute this Agreement for the limited purposes set forth below.

AGREEMENT

The parties, intending to be legally bound, agree as follows:

1. DEFINITIONS

For purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 1:

Accounts Receivable - as defined in Section 3.7.

Affiliate - with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Person specified.

Agreement - as defined in the first paragraph of this Agreement.

Allocation - as defined in Section 2.5.

Annual Balance Sheet - the balance sheet of the Company as of December 31, 2005 included in the Annual Financial Statements.

Annual Financial Statements - as defined in Section 3.4.

Assignment and Assumption - as defined in Section 2.4(a)(vi).

Business means the business carried on by the Company which involves the design, marketing, sale and distribution of the Products in the Territory.

Business Day - means any day other than a Saturday, Sunday or holiday on which commercial banks located in New York City are obligated or authorized by law or executive order to close.

Business Intellectual Property - as defined in Section 3.15.

Buyer - as defined in the first paragraph of this Agreement.

Buyers Advisors - as defined in Section 5.1.

Check-the-box Election - as defined in Section 3.9(b).

Closingas defined in Section 2.3.

Closing Datethe date and time as of which the Closing actually takes place.

Company - as defined in the first paragraph of this Agreement.

Company Transaction Expenses - all of the following to the extent incurred or accrued by the Company on or before the Closing Date: (i) all out-of-pocket costs and expenses incurred in connection with the transactions contemplated hereby, including, without limitation, investment advisory fees and expenses, other consultant, legal, Tax, accounting, travel, due diligence and related fees and expenses, and escrow agent fees and expenses; (ii) all payments required to be made by the Company to any Person due to the consummation of the Contemplated Transactions; and (iii) all fees and expenses incurred by the Company in connection with the termination of any Company Indebtedness.

Company Indebtedness - as defined in Section 2.2.

Consentany approval, consent, ratification, waiver, or other authorization.

Confidentiality Agreement - means the confidentiality agreement dated April 24, 2006 between Seller and Buyer or any of its Affiliates.

Contemplated Transactionsall of the transactions contemplated by this Agreement, including, without limitation:

(a) the sale of the Shares by Seller to Buyer; and

(b) the performance by Buyer and Seller of their respective covenants and obligations under this Agreement.

Contractany agreement, commitment, contract, instrument, obligation, promise, or undertaking (whether written or oral and whether express or implied) that is legally binding, in whole or in part, upon a party thereto.

Damagesas defined in Section 9.2.

Deed of Transfer - the notarial deed of transfer for the Shares substantially in the form attached hereto as Exhibit B.

Disclosure Schedulethe Disclosure Schedule delivered by Seller to Buyer concurrently with the execution and delivery of this Agreement and attached hereto as Exhibit A.

Disregarded Entity - as defined in Section 3.9(b).

Divestiture Agreement - all agreements or arrangements by which the Company sold or divested itself, directly or through a Subsidiary, of any material portion of its assets, including the sale of all or substantially all of the capital stock or other ownership interests of any of its Subsidiaries.

Encumbranceany burden charge, claim, condition, covenant, deed of trust, easement, encroachment, equitable interest, hypothecation, lease, lien, mortgage, option, pledge, security interest, sublease, title defect, title retention agreement, right of first refusal, or restriction of any kind, including, without limitation, any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership, other than any applicable federal or state securities law restrictions.

Environmentsoil, land surface or subsurface strata, surface waters, groundwaters, air or any other environmental medium or natural resource.

Environmental Lawany Legal Requirement that requires or relates to:

(a) advising appropriate authorities, employees, and the public of intended or actual releases of pollutants or hazardous substances or materials, violations of discharge limits, or other prohibitions and of the commencements of activities, such as resource extraction or construction, that could have significant impact on the Environment;

(b) preventing or reducing to acceptable levels the release of pollutants or hazardous substances or materials into the Environment;

(c) reducing the quantities, preventing the release, or minimizing the hazardous characteristics of wastes that are generated;

(d) assuring that products are designed, formulated, packaged, and used so that they do not present unreasonable risks to human health or the Environment when used or disposed of;

(e) protecting resources, species, or ecological amenities;

(f) reducing to acceptable levels the risks inherent in the transportation of hazardous substances, pollutants, oil, or other potentially harmful substances;

(g) cleaning up pollutants that have been released, preventing the threat of release, or paying the costs of such clean up or prevention; or

(h) making responsible parties pay private parties, or groups of them, for damages done to their health or the Environment, or permitting self-appointed representatives of the public interest to recover for injuries done to public assets.

ERISA - the Employee Retirement Income Security Act of 1974, as amended, and any successor law, and regulations and rules issued pursuant to that act or any successor law.

Facilitiesany leaseholds or other interests currently or formerly owned or operated by the Company and any buildings, plants, structures, or equipment currently or formerly owned or operated by the Company.

FDA Act - the United States Federal Food, Drug and Cosmetic Act, as amended, and rules and regulations issued thereunder.

Financial Statements - as defined in Section 3.4.

GAAP - means United States generally accepted accounting principles, as in effect from time to time, applied on a consistent basis.

Governmental Authority - any (a) federal, state, regional, county, city, municipal or local government, whether foreign or domestic; (b) governmental or quasi-governmental authority of any nature including any regulatory or administrative agency, commission, department, board, bureau, court, tribunal, arbitrator, arbitral body, agency, branch, official entity, or other administrative or regulatory body obtaining authority from any of the foregoing; or (c) other Person exercising, or entitled to exercise, any administration, executive, judicial, legislative, notice, regulatory or taxing authority or power of any nature.

Hazardous Materialsany waste or other substance that is listed, defined, designated, or classified as, or otherwise determined to be, hazardous, radioactive, or toxic or a pollutant or a contaminant under or pursuant to any Environmental Law.

Indemnified Personsas defined in Section 9.2.

Interim Balance Sheet - the balance sheet of the Company as of August 31, 2006 included in the Interim Financial Statements.

Interim Financial Statementsas defined in Section 3.4.

Inventory - means the usable and merchantable finished goods, components, raw materials and displays of the Product which are not obsolete having expiration dating of not less than twenty-four (24) months and representing not more than six (6) months of forecasted requirements for sale of any SKU within the Territory. For the avoidance of doubt, Inventory shall not include Wartner Kids products or any components or raw materials not usable by Pharmaspray and/or the Company as of the Closing Date.

IRCthe Internal Revenue Code of 1986, as amended, or any successor law, and regulations issued by the IRS pursuant to the Internal Revenue Code or any successor law.

IRSthe United States Internal Revenue Service or any successor agency, and, to the extent relevant, the United States Department of the Treasury.

Knowledge - and all other words of similar meaning, whether or not capitalized, when used with respect to (i) Seller shall mean the actual knowledge or knowledge that may be obtained by the officers of Seller after making Due Inquiry; and (ii) Buyer shall mean the actual knowledge or knowledge that may be obtained by the officers of Buyer after making Due Inquiry. For the purposes of this definition, the term Due Inquiry by an individual means inquiry, after review of the specific provision(s) of this Agreement in question, of such peers or subordinates whom such individual determines in reasonable good faith to be the appropriate Persons to be approached with respect to the particular fact or matter in question, about such particular fact or matter in question and who the Person making the inquiry reasonably believes has personal knowledge of the particular fact or matter in question.

Legal Requirementany federal, state, local, municipal, foreign, international, multinational, or other administrative order, constitution, law, ordinance, principle of common law, regulation, statute, or treaty.

Material Adverse Effect - means, with respect to any Person or any of its Subsidiaries (together as one party for purposes of this Section), an individual or cumulative adverse change in or effect on (i) the business, properties, assets, condition (financial or otherwise), liabilities or results of operations of such party which is, or could reasonably be expected to be, materially adverse to the business, properties, assets, condition (financial or otherwise), liabilities or results of operations of such party and its Subsidiaries taken as a whole, (ii) such Person or any of its Subsidiaries as a result of the cancellation, amendment or postponement for a period of three months or more of any current or proposed Material Contract, or (iii) the ability of such Person to perform its material obligations under this Agreement and the Related Agreements.

Material Contract - as defined in Section 3.12.

Non-Compete Activities - as defined in Section 5.3(a).

Notary - means Daan ter Braak, civil law notary (notaris), or his/her deputy (plaatsvervanger).

Order - an order, award, decision, injunction, judgment, ruling, subpoena, or verdict issued or rendered by any court, administrative agency or other Governmental Authority (A) to which the Company or any of its businesses, assets or properties is subject, or (B) to which Seller is subject with respect to Sellers ownership of or ability to sell or vote the Shares.

Ordinary Course of Business - the ordinary course of Business consistent with past custom and practice (including with respect to quantity and frequency).

Organizational Documents (a) the articles or certificate of incorporation and the bylaws of a corporation; (b) any charter or similar document adopted or filed in connection with the creation, formation, or organization of a Person; and (c) any amendment to any of the foregoing (including but not limited to the current articles of association (statuten) of the Company).

Permits - as defined in Section 3.24(ii).

Personany individual, corporation, general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, or other entity or governmental body.

Pharmaspray - means Pharmaspray B.V., a company organized and existing under the law of the Netherlands.

Post-Closing Tax Period - as defined in Section 10.1(b).

Pre-Closing Tax Period - as defined in Section 10.1(a).

Proceedingany action, arbitration, audit, hearing, investigation, litigation, or suit commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Authority.

Product - the OTC cryogenic treatment for warts sold under the WARTNER trademark and the cryogenic professional use treatment for warts under the WARTNER PRO trademark, both of which utilize the Business Intellectual Property.

Purchase Price - as defined in Section 2.2.

Related Agreements - means, with respect to a party hereto, the Transition Agreement, the Assignment and Assumption, the Wartner Assignment and any other agreement or instrument executed by such party in connection with this Agreement.

Representativewith respect to a particular Person, any director, officer, employee, affiliate, agent, consultant, advisor, or other representative of such Person, including legal counsel, accountants, and financial advisors.

Restricted Period - as defined in Section 5.3(a).

Returns - any claim for credit or refund for unsold Product or other merchandise by any customer or account of Seller, the Company or Buyer, whether or not accompanied by the Product or other merchandise originally sold, and whether or not damaged, out of date or otherwise impaired.

Right of Set-Off - as defined in Section 9.10.

Securities Actthe Securities Act of 1933, as amended, or any successor law, and regulations and rules issued pursuant to that Act or any successor law.

Seller - as defined in the first paragraph of this Agreement.

Shareholders - as defined in the first paragraph of this Agreement.

Sharesas defined in the Recitals of this Agreement.

Share Sale Agreementthe Share Sale Agreement dated June 10, 2003 between Wartner Holding as the seller, Seller as the purchaser, and the Company, for the sale by the seller of the entire issued and outstanding share capital of the Company to the purchaser.

SKU - means one or more non-obsolete shelf keeping units of the Product.

Straddle Period - as defined in Section 10.1(c).

Subsidiarywith respect to any Person (the Owner), any corporation or other Person of which securities or other interests having the power to elect a majority of that corporation's or other Person's board of directors or similar governing body, or otherwise having the power to direct the business and policies of that corporation or other Person (other than securities or other interests having such power only upon the happening of a contingency that has not occurred) are held by the Owner or one or more of its Subsidiaries; when used without reference to a particular Person, Subsidiary means a Subsidiary of the Company.

Tax or Taxes means any federal, state, local or foreign net or gross income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium (including taxes under Section 59A of the IRC), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, conveyance, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax, governmental fee or like assessment, together with any interest and penalties, additions to tax or additional amounts imposed by any Governmental Authority.

Tax Authority means any Governmental Authority with responsibility for Taxes.

Tax Return means all returns, reports, elections, forms, declarations, statements, estimated returns, claims for refund and information returns supplied or required to be supplied to a Tax Authority relating to Taxes.

Territory - means the United States of America (including its territories and possessions), Canada, Mexico, Bermuda and the Dominican Republic.

Trade Adjustment - means any unilateral financial adjustment by a customer or account of Seller, the Company or Buyer wherein such customer or account makes a reduction of an amount to be paid or credited to Buyer, Seller or the Company as a consequence of alleged or actual prior or subsequent commercial dealings in the Product or in connection with prior or subsequent commercial dealings in other products where those commercial dealings are treated by the account as offsets to obligations to Buyer, Seller or the Company relating to the Product.

Transfer Taxes: - as defined in Section 10.3.

Transition Agreement - as defined in Section 2.4(a)(v).

U.S. Patent - as defined in Section 3.15.

Wartner Assignment - as defined in Section 2.4(a)(iv).

Wartner B.V. - means that certain private company with limited liability organized under the laws of the Netherlands which has among its affiliates Wartner Holding and Wartner Medical Products A.G.

Wartner Europe B.V. means that certain private company with limited liability organized under the laws of the Netherlands formerly affiliated with Wartner Holding but which as of the date of this Agreement is a wholly owned subsidiary of Omega Pharma N.V. Wartner Europe B.V. is not a party to this Agreement.

Wartner Holding - means Wartner Holding B.V., a private company with limited liability organized under the laws of the Netherlands which is an affiliate of Wartner B.V.

2. SALE AND TRANSFER OF SHARES; CLOSING

2.1 SHARES

Subject to the terms and conditions of this Agreement, at the Closing, Seller will sell and transfer all of the Shares of capital stock of the Company to Buyer, and Buyer will purchase all of the Shares of capital stock of the Company from Seller, free and clear of any Encumbrances except as set forth on Schedule 2.1.

Subject to the terms and conditions of this Agreement, Seller shall transfer title to the Shares to Buyer, and Buyer shall accept the same from Seller, at Closing through the execution of the Deed of Transfer before the Notary.

2.2 PURCHASE PRICE

Subject to the further provisions of this Section 2.2, the purchase price (the Purchase Price) for all of the Shares of capital stock of the Company shall be $31,500,000 payable in cash at Closing to Seller. The Purchase Price assumes that, as of the Closing, (i) the Company will have no outstanding debt and no obligations not in the Ordinary Course of Business (any such indebtedness and obligations, Company Indebtedness); and (ii) the Company will have Inventory in an aggregate amount equal to at least $950,000 which shall be saleable in the Ordinary Course of Business; provided, that Company Indebtedness shall not include trade debt and normal operating liabilities not incurred in the Ordinary Course of Business. The Purchase Price shall be (i) (x) increased by the amount, if any, by which the Companys Inventory (valued at cost) as of the Closing (based on a physical inventory taken by Buyer and Seller on the Closing Date) exceeds $950,000; or (y) decreased by the amount, if any, by which the Companys Inventory (valued at cost) as of the Closing (based on a physical inventory taken by Buyer and Seller on the Closing Date) is less than $950,000; (ii) decreased by the amount, if any, of Company Indebtedness as of the Closing; and (iii) decreased by the amount of Company Transaction Expenses. For purposes of

calculating the amount to be wired at Closing, the amount of Inventory shall be determined on the Closing Date based on Sellers perpetual inventory system. Each of Seller and Buyer agree to cooperate with the other regarding any post-closing adjustments that need to be made to the Purchase Price to reflect the actual amount of Inventory as of the Closing.

2.3 CLOSING

Subject to the satisfaction of all of the closing conditions contained in this Agreement, the purchase and sale (the Closing) provided for in this Agreement will take place at the offices of Sellers counsel, Bradley & Riley PC, Cedar Rapids, Iowa, at 10:00 a.m. (local time) on or about September 21, 2006, or at such other time and place as the parties may agree. The execution of the Deed of Transfer will take place on the Closing Date at the offices of Van Doorne N.V., Jachthavenweg 121, 1081 KM Amsterdam, The Netherlands.

2.4 CLOSING OBLIGATIONS

At the Closing, after the Notary has received sufficient confirmation that the Purchase Price has been transferred by Buyer and received by Seller in accordance with Sections 2.2 and 2.4(b)(i), Seller and Buyer shall execute the Deed of Transfer before the Notary and shall procure that the Notary shall execute the Deed of Transfer. Seller shall procure that the Company will acknowledge the transfer of the Shares, by signing the Deed of Transfer.

At the Closing:

(a) Seller will deliver to Buyer:

(i) certificates representing the Shares, duly endorsed (or accompanied by duly executed stock powers) and any other documents reasonably necessary to transfer to Buyer the entire right, title and interest in and to all of the Shares of capital stock of the Company;

(ii) a certificate, dated as of the Closing Date and executed by the Chief Executive Officer or Chief Financial Officer of Seller certifying in such detail as Buyer may reasonably request that the conditions specified in Sections 6.1 and 6.2 hereof have been fulfilled with respect to Seller and the Company and certifying that Seller and the Company have obtained all consents and approvals required with respect to the Contemplated Transactions;

End of Preview

Home Intelligence Services Subscriptions News About Us