PHARMA PATCH PLC
- and -
ATLANTIC CENTRAL
ENTERPRISES LIMITED
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BUSINESS TRANSFER AGREEMENT
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THIS AGREEMENT is made this 17th day of January, 1997
BETWEEN:-
1. PHARMA PATCH PLC whose registered office is at 00/00 Xxxxxxxxxxx Xxxxx
Xxxxxx 0, Xxxxxxx (the "Transferor");
AND
2. ATLANTIC CENTRAL ENTERPRISES LIMITED whose registered office is at Cedar
House, 41 Cedar Avenue, Xxxxxxxx XX 12, Bermuda (the "Transferee").
WHEREAS:-
(A) The Transferor is a public limited company incorporated in Ireland.
(B) The Transferee is a company incorporated in Bermuda and is a
wholly-owned subsidiary of the Transferor.
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(C) Pursuant to a plan of reorganisation of the Transferor, (i) the
Transferor proposes to transfer to the Transferee all of the
Transferor's assets, and the Transferee proposes to assume all of the
Transferor's liabilities in exchange for shares of the Transferor; (ii)
the Transferor will commence voluntary liquidation or winding-up; and
(iii) the Transferor will distribute its shares in the Transferee to its
shareholders.
NOW THIS AGREEMENT WITNESSES as follows:-
1. DEFINITION AND INTERPRETATION
In this Agreement (which expression shall include the Recitals of and
the Schedules to this Agreement) the headings are for convenience only
and shall not affect the interpretation hereof and except where
inconsistent with the subject matter or context:-
(A) the following words and expressions shall have the following meanings
respectively:-
"Assets" means all the assets hereby agreed to be transferred
as more particularly described in Schedule I;
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"Books Debts" means all books and other debts owing to the
Transferor (and whether or not yet due and payable) at
the Transfer Date including:
(i) all loans and advances due from an Vista
Technologies, Inc. and
(ii) sundry debtors;
"Business" means the investment holding business of the
Transferor;
"Chattels" means the books, ledgers, day books, cash books,
account books, records, reports and marketing
literature, confidential information and other
personal chattels of the Transferor (whether in
written form, on microfilm, magnetic tape or any other
form of mechanical or electronic data retrieval
system) on and used by the Transferor exclusively for
or in connection with the Business as at the Transfer
Date;
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"Claims" means all rights and claims of the Transferor
whatsoever subsisting on the Transfer Date in favour
of the Transferor in relation to the Business or any
of the Assets;
"Completion" means performance by the parties of the several
obligations contained in the Agreement;
"Goodwill" means the goodwill of the Transferor in connection
with the Business together with the benefit of all
records, customer lists and other documents whatsoever
used in connection with the Business and owned by the
Transferor;
"Liabilities" means any liability or indebtedness of the Transferor,
whether actual or contingent, which has arisen or been
incurred or may arise or be incurred in connection
with the Business as at the Transfer Date:
"Management
Contracts" means the management agreements entered into by the
Transferor and described in Schedule [ ];
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"Parties" means the Transferor and the Transferee;
"Securities" means the securities beneficially owned by the
Transferor at the Transfer Date, including those
presently owned by the Transferor and listed in
Schedule II;
"Tax Liability" means any liability or indebtedness of the Transferor,
whether actual or contingent, which has arisen or been
incurred on account of duties or taxation assessed,
imposed or levied on the Transferor by any relevant
regulatory or governmental authority, department or
agency in respect of the Business; and
"Transfer Date" means 20th January, 1997;
(B) references to Recitals, Clauses, sub-clauses and Schedules are
references to recitals, clauses and sub-clauses of and schedules to this
Agreement; and
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(C) references to a statutory provision shall include references to such
provision and to any regulations made in pursuance thereof as from time
to time modified, codified or re-enacted whether before or after the
date of this Agreement so far as such modification, codification or
re-enactment applies or is capable of applying to any transactions
entered into prior to Completion and (so far as liability thereunder may
exist or can arise) shall include also any past statutory provisions or
regulations (as from time to time modified, codified or re-enacted)
which such provision has directly or indirectly replaced.
2. TRANSFER OF THE ASSETS
(A) The Transferor shall transfer and the Transferee shall acquire with
effect from the close of business on the Transfer Date the Assets,
including, but without prejudice to the generality of the foregoing, the
following:-
(1) the Book Debts;
(2) the Chattels;
(3) the Claims;
(4) the Goodwill; and
(5) the Securities.
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and the Transferor will assume all of the Transferor's liabilities in
exchange for 1,747,961 shares of the Transferor's. common shares
constituting all of the issued and outstanding shares of the Transferee.
(B) The Transferee shall accept without enquiry, requisition or objection
such title as the Transferor may have in the Assets.
(C) The Transferor undertakes to transfer the Business as a going concern as
at the Transfer Date and the Transferee undertakes that as from the
Transfer Date it will carry on the Business as a going concern.
3. COMPLETION
(A) Completion of the transfer purchase of the Business shall take place on
20th January, 1997 or on such later date on which the shareholders of
the Transferor shall have approved the Plan of Reorganisation.
(B) On Completion the Transferor shall:
(a) deliver or, transfer, or procure the delivery or transfer, to the
Transferee of possession or control of the Assets capable of
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delivery or transfer including (without prejudice to the
generality of the foregoing):-
(i) all Chattels; and
(ii) such lists of clients, agents and other information
documents or things relating to the Business as the
Transferee may reasonably require; and
(b) deliver to the Transferee instruments of transfer in respect of
all of the Securities referred to in Schedule II duly executed by
or on behalf of the Transferor or otherwise its nominee(s) (as the
registered holder(s) and transferor(s) of the securities) in
favour of the Transferor or its nominee(s).
(D) On Completion or as soon as practicable thereafter, the parties hereto
shall execute and do, or procure to be done or executed, and concur in,
all such assurances, assignments, deeds, documents, acts and things as
shall be required for vesting in the Transferee the Assets and giving
the Transferee the full benefit of this Agreement, and prior thereto the
Transferor shall hold the Assets in question in trust for the Transferee
absolutely.
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(E) In the case of any Asset in respect of which any licence, consent or
release is required to be obtained to transfer possession, possession
will be given to the Transferee as soon after Completion as the
requisite licence, consent or release is obtained. Until such time, the
Transferor will give the Transferee such access to or the use of the
relevant Asset, if any, as may be permissible in the absence of the
licenee, consent or release.
(F) Following the date hereof and pending Completion, the Transferor shall
not acquire any assets, or incur any liabilities, in respect of the
Business without the prior consent of the Transferee, save as may be
necessary in connection with the liquidation of the Transferor.
(G) The provisions of this Agreement shall remain in full force and effect
notwithstanding Completion.
4. LIABILITIES AND UNCOMPLETED CONTRACTS
(A) The Transferee shall after the Transfer Date have the benefit of
carrying out and completing for its own account all contracts and
arrangements entered into by the Transferor in connection with the
Business on or prior to the Transfer Date.
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(B) The Transferee shall after the Transfer Date meet the obligations and
liabilities of the Transferor under all contracts and arrangements
entered into by the Transferor in connection with the Business on or
prior to the Transfer Date including the Liabilities, with the intent of
discharging the same in the ordinary course of business to the extent
that the same have not been performed prior thereto. The Transferee
shall itself bear the cost of meeting such obligations.
(C) Insofar as any of the properties, rights, assets or the benefit of any
contracts to be transferred hereunder cannot effectively be transferred
to the Transferee, except by an agreement of novation with third
parties, then conditionally upon Completion:-
(i) the parties shall co-operate to use their best endeavours to
procure the same to be novated as aforesaid; and
(ii) unless and until any such novation the Transferor shall do all
acts and things in relation thereto as the Transferee may
reasonably require.
(D) To the extent that any payment is made to the Transferor in respect of
contracts after the Transfer Date and the Transferor shall receive the
same as agent of the Transferee and shall account to the Transferee for
the same on or after Completion.
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(E) The Transferee shall be responsible for and shall indemnify the
Transferor against any claim duly made on or after the Transfer Date in
respect of any service supplied by the Transferor prior to the close of
business on the Transfer Date in the ordinary course of the Business.
5. OBLIGATIONS OF TRANSFEROR
Except as otherwise expressly provided in this Agreement in respect of
the Liabilities, the Transferor shall be responsible for and shall duly
and punctually pay and discharge all debts, taxation and other
liabilities in connection with the Business existing at the close of
business on the Transfer Date or arising, accruing or assessed in
respect of any period (or part thereof) or in consequence of any
transaction carried out prior thereto.
6. NOTICES
Any notice or document requiring to be served on any of the parties
hereto in relation to the provisions of this Agreement may be served on
a party at its registered office. Any such notice shall be delivered by
hand or telex or sent by first class post and if sent by post shall
conclusively be deemed to have been received forty-eight hours from the
time of posting.
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7. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of Bermuda and each of the parties hereto hereby submit to the
non-exclusive jurisdiction of the Bermuda courts.
8. GENERAL
(A) This Agreement may be executed in one or more counterparts each signed
by one or more of the parties hereto and such counterparts shall
constitute one agreement.
(B) This Agreement shall be binding upon each of the parties hereto and
their assigns, successors in title or legal personal representatives as
the case may be.
(C) The costs and expenses of entering into this Agreement and giving effect
to the transactions contemplated thereby shall be home by the parties
thereto in such proportions as may be respectively agreed between them.
(D) No variation of this Agreement shall be valid unless it is signed in
writing by or on behalf of the parties thereto.
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AS WITNESS whereof this Agreement was entered into the day and year
first above written.
Signed by:
(For and on behalf of PHARMA PATCH PLC) /s/ Xxxx X. Xxxxx
in the presence of: /s/ Xxxxxx X. Xxxxxx
Signed by: )
For and on behalf of ) /s/ Xxxx X. Xxxxx
ATLANTIC CENTRAL ) /s/ Xxxxxx X. Xxxxxx
ENTERPRISES LIMITED in the )
presence of: )
