On behalf of the Registrant, the undersigned hereby certifies that the
following exhibit provides a fair and accurate English translation of the
material contained in the original, the official language of which is French.
DEPUY, INC.
By: /s/ Steven L. Artusi
---------------------
Steven L. Artusi
Senior Vice President, General Counsel
and Secretary
By: /s/ Thomas J. Oberhausen
------------------------
Thomas J. Oberhausen
Senior Vice President and Chief
Financial and Accounting Officer
EXHIBIT 2.3
PARTIAL TRADEMARK ASSIGNMENT
AND TRADEMARK COEXISTENCE AGREEMENT
BETWEEN:
- - Landanger-Camus, a joint stock company with a capital of FF 21,636,700,
registered with the Commercial Registry of Chaumont under the number B 347
558 371, having its registered office at Z.I. "La Vendue," rue de Val,
52000 Chaumont, represented by Patrick Landanger, President of the
Directory, duly authorized for the purposes hereof,
(hereinafter referred to as "the Assignor"),
ON THE ONE HAND,
AND:
- - Landanger S.A.R.L., a limited liability company with a capital of FF
1,100,000, having its registered office at 9 boulevard Marechal de Lattre
de Tassigny, 52000 Chaumont, in the process of being registered with the
Commercial Registry of Chaumont.
(hereinafter referred to as "the Assignee"),
and
- - Mr. Patrick Landanger, a French citizen domiciled at 85, quai d'Orsay,
75007 Paris, France;
- - Mr. Eric Landanger, a French citizen domiciled at 15, rue des Acacias,
52000 Jonchery, France; and
- - Ms. Maryvonne Guibert, a French citizen domiciled at 9, boulevard
Gambetta, 52000 Chaumont, France;
- - Mrs. Renee Landanger, a French citizen domiciled at 10, rue de Dijon,
52000 Chaumont, France;
- - Mr. Louis Landanger, a French citizen domiciled at 10, rue de Dijon, 52000
Chaumont, France;
(hereinafter referred to as "the Landanger Family")
ON THE OTHER HAND,
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WITNESSETH
- ----------
1. Under a share purchase agreement signed on 28 February 1997 (hereinafter
referred to as the "Share Purchase Agreement"), Patrick Landanger, Eric
Landanger, Maryvonne Guibert, Michel Colombier, Renee Landanger, Louis
Landanger, Martine Bonnaventure and Guy Bonnaventure (hereinafter referred to as
the "Sellers") have agreed to sell to DePuy, Inc., a corporation incorporated
and existing under the laws of Delaware, United States of America, having its
principal office at 700 Orthopaedic Drive, Warsaw, IN 46581-0988, United States
of America, who itself has transferred all of its rights and obligations under
the Share Purchase Agreement to DePuy Orthopedie S.A., a limited liability
corporation with a capital of FF 4,430,000, having its registered office at 2,
rue du Bois Sauvage, 91000 Evry (hereinafter referred to as the "Purchaser")
their direct and indirect controlling stake in Landanger-Camus via the sale of
all of the shares and voting rights they hold in 3L, and the shares and voting
rights they hold in Landanger-Camus, subject to satisfaction of several
conditions precedent contained in the Share Purchase Agreement.
Pursuant to the Share Purchase Agreement, the Purchaser has acquired in
particular the indirect control of Landanger-Landos, a subsidiary of Landanger-
Camus.
2. One of the conditions precedent provided under the Share Purchase Agreement
is stated in Section 4.4 of said Agreement, which states that the general
surgical instruments activity carried out by Landanger-Camus (consisting in
products used in general surgery and the corresponding sterilization boxes, but
excluding all trauma products and all orthopedic ancillary instruments) will
have been transferred, pursuant to applicable laws and regulations, to a single
third party company, and the shares received by Landanger-Camus in consideration
for such activity will have been sold to any of the Sellers.
3. The transfer of the activity described above in paragraph 2 has been
implemented by a Mix Contribution Agreement dated March 20, 1997 to the benefit
of Landanger S.A.R.L.
4. Article 6 of the Share Purchase Agreement states:
"Section 6.1
Landanger-Camus and the Subsidiaries, for their activities as of the
Closing Date :
(a) are hereby granted the exclusive right to use the names "Landanger"
and "Landanger-Camus";
(b) have been, or will be by the Closing Date at the latest, registered as
the exclusive owners of such name with the Institut National de la
Propriete Industrielle in France, and with similar organizations in
other countries where these companies carry out their respective
activities as of the Closing Date; and
(c) will retain the exclusive possibility to be registered as the owners
of such names for such activities in any other countries.
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Section 6.2
-----------
Only in respect of the activities indicated in Sections 4.3 and 4.4 above,
the Sellers, or the corporate entity created to carry out such activities :
(a) are hereby granted the exclusive right to use the name "Landanger";
(b) have been, or will be by the Closing Date at the latest, registered as
the exclusive owners of such name with the Institut National de la
Propriete Industrielle in France, and with similar organizations in
any other countries in which the activities described in Sections 4.3
and 4.4 above are carried out as of the Closing Date; and
(c) will retain the exclusive possibility to be registered as the owners
of such names for the activities described in Sections 4.3 and 4.4
above in any other countries.
Section 6.3
-----------
Landanger-Camus is hereby definitively granted the exclusive right to use
the patronymic "Landanger-Camus" as its corporate name.
Section 6.4
-----------
For any activities other than those carried out by 3L, Landanger-Camus and
the Subsidiaries as of the Closing Date and the activities described in
Sections 4.3 and 4.4 above, neither Party will have the possibility to use
the names "Landanger" and "Landanger-Camus" and to be registered as the
owner of same without the prior written consent thereto of the other Party.
All necessary steps, and in particular contractual steps, will be taken at
the latest by the Closing in order to validly implement the above."
5. In addition, Section 3.2 of the Share Purchase Agreement provides that at
the Closing, the Sellers will deliver or will cause to be delivered to the
Purchaser executed copies of agreements implementing the principles set forth in
Section 6 of the Share Purchase Agreement, and copies of the relevant
registration certificates issued by the National Institute of Industrial
Property.
6. The Sellers wish to use the name Landanger only for the general surgical
instruments activity described in Article 4.4 of the Share Purchase Agreement.
-4-
7. In order to implement the agreement provided under the Share Purchase
Agreement, the parties hereto agree, in the terms described below, upon a
partial assignment of the trademark "Landanger", of which the Assignor is the
holder. Such partial assignment is made together with a coexistence agreement
of the two "Landanger" trademarks resulting from the assignment and of the
commercial names "Landanger", in order to avoid risks of confusion, the
Assignor and the Assignee having close respective fields of activity. This
Partial Trademark Assignment and Trademark Coexistence Agreement will be
interpreted and construed in light of the terms of the Share Purchase Agreement.
ARTICLE 1 - DEFINITION
----------
1.1 All terms contained herein beginning with a capital letter and not defined
below are defined in the Share Purchase Agreement, and will have the meaning set
forth therein.
1.2 "Trademark" designates:
(i) the French nominal trademark LANDANGER filed at the INPI under number
845 160 on March 17, 1987, registered under number 1399097 in classes 10,
11, 9, 12, 20, 35, 37, 42, and published in the BOPI 1987 volume 34 page 78
and renewed on January 27, 1997 pursuant to filing number 000944. The
Trademark is filed for the goods and services listed in the registration
certificate attached hereto (Exhibit 1) ; and
(ii) the foreign nominal trademarks LANDANGER, in the countries a list of
which is annexed hereto (Exhibit 2).
ARTICLE 2 - ASSIGNMENT
----------
2.1 The Assignor assigns to the Assignee, who accepts, the ownership
of the Trademark only for the products and services listed in Exhibit 3 and only
for such products and services corresponding to the surgical and sterilisation
instruments business transferred by Landanger-Landos to Landanger S.A.R.L. and
mentioned in Section 4.4 of the Share Purchase Agreement, as exercised as of the
Closing Date.
2.2 Landanger-Camus retains the full and entire ownership of the
Trademark for goods and services corresponding to its activities and the
activities of its Subsidiarie s.
2.3 Landanger S.A.R.L. and the Landanger Family will not in any
manner whatsoever, directly or indirectly, and particularly by way of any other
entity which they may create, use the Trademark for:
(i) the manufacturing, sale, marketing, research or development of
orthopaedic devices ;
(ii) any products or services competing in any manner whatsoever with
any products or services manufactured, sold or offered by 3L,
Landanger-Camus or the Subsidiaries ; and
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(iii) more generally, for any products or services manufactured, sold
or offered other than within the exercise of the general surgical
instruments business mentioned in Section 4.4 of the Share
Purchase Agreement.
2.4 The formalities regarding this partial assignment of the
Trademark in France and in all other countries where the Landanger S.A.R.L.
exercises its activities will be carried out by Landanger S.A.R.L. at its
expense.
ARTICLE 3 - THE COEXISTENCE OF TRADEMARKS
-----------------------------
3.1 The Assignor and Assignee agree to accept as necessary for the
implementation of the agreements referred to above, the coexistence of their
respective LANDANGER nominal trademarks, without this coexistence agreement
broadening the scope of the assignment as defined in Article 2 and according to
the following conditions:
- the packaging of goods bearing the nominal trademark LANDANGER
belonging to the parties should be such that they might not be
confused with one another;
- the Trademark belonging to the Assignee as a result of this
assignment will always be used with a different logotype than
that usually used by the Assignor for the Trademark, except for
the existing inventory as of the date hereof.
3.2 Landanger S.A.R.L. and the Landanger Family accept the
coexistence of their nominal trademark LANDANGER for the goods and services
listed above in section 2.1, with the exclusive right of Landanger-Camus to use
the name and/or the trademark LANDANGER-CAMUS for all the activities exercised
by Landanger-Camus or the Subsidiaries.
3.3 Landanger S.A.R.L. and the Landanger Family accept the
coexistence of their nominal trademark LANDANGER for the goods and services
listed above in section 2.1, with the exclusive right of Landanger-Landos to use
the name and/or the trademark LANDANGER-LANDOS for all the activities exercised
by Landanger-Landos.
ARTICLE 4- PRICE
-----
The present assignment is free of charge for the reasons stated
in the preamble.
ARTICLE 5- GUARANTEES
----------
The Assignor does not grant any guarantees other than those
resulting from the Trademark's material existence, as it has been filed,
registered and renewed under the control of the Landanger Family.
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In the event that the Trademark would be declared void or lost by
a court decision, Landanger S.A.R.L. and the Landanger would not have any right
to any compensation of any kind whatsoever.
ARTICLE 6 - GOVERNING LAW
-------------
This agreement is governed by French law.
ARTICLE 7 - JURISDICTION
------------
All disputes arising from the present agreement will be settled
by the competent Paris courts.
ARTICLE 8 - PUBLICATION
-----------
All powers are given to the holder of an original copy of this
document to secure or carry out all formalities, registration, publication, and
filing everywhere and in all administrative agencies when necessary.
Executed in Paris,
in four (8) counterparts, one of which for the National Institute of Industrial
Property ("Institut National de Propriete Industrielle").
On April 1st, 1997
Landanger-Camus Landanger S.A.R.L.
- ------------------------- ----------------------------
Landanger-Camus Landanger S.A.R.L.
Patrick Landanger Eric Landanger
- --------------------------- ------------------------
Patrick Landanger Eric Landanger
Maryvonne Guibert Renee Landanger
- --------------------------- -------------------------
Maryvonne Guibert Renee Landanger
Louis Landanger
- -------------------------
Louis Landanger
LIST OF EXCLUDED SCHEDULES
Exhibit 1 Registration certificate of French nominal trademark LANDANGER
Exhibit 2 List of countries of foreign nominal trademark LANDANGER
Exhibit 3 Products and Services