ASSET PURCHASE AGREEMENT BETWEEN GENESENSE TECHNOLOGIES INC. AND 4325231 CANADA INC. MADE AS OF July 10, 2007 McCarthy Tétrault LLP
EXHIBIT
99.5
[Tangible
Business Assets Transfer Agreement]
BETWEEN
GENESENSE
TECHNOLOGIES INC.
AND
4325231
CANADA INC.
MADE
AS OF
July
10, 2007
XxXxxxxx
Xxxxxxxx LLP
TABLE
OF CONTENTS
|
ARTICLE
1 -
|
INTERPRETATION
|
2
|
|
1.01
|
Definitions
|
2
|
|
1.02
|
Headings
|
4
|
|
1.03
|
Extended
Meanings
|
4
|
|
1.04
|
Statutory
References
|
5
|
|
1.05
|
Accounting
Principles
|
5
|
|
1.06
|
Currency
|
5
|
|
1.07
|
Schedules
|
5
|
|
ARTICLE
2 -
|
SALE
AND PURCHASE
|
5
|
|
2.01
|
Assets
to be Sold and Purchased
|
5
|
|
2.02
|
Purchase
Price
|
5
|
|
2.03
|
Purchase
Price Allocation
|
6
|
|
2.04
|
Payment
of Purchase Price
|
6
|
|
2.05
|
Closing
Adjustment
|
6
|
|
2.06
|
Non-Assignable
Contracts and Commitments
|
6
|
|
ARTICLE
3 -
|
REPRESENTATIONS
AND WARRANTIES
|
7
|
|
3.01
|
Vendor’s
Representations and Warranties
|
7
|
|
3.02
|
Purchaser’s
Representations and Warranties
|
8
|
|
3.03
|
Survival
of Representations, Warranties and Covenants
|
8
|
|
ARTICLE
4 -
|
COVENANTS
|
9
|
|
4.01
|
Covenants
of the Vendor
|
9
|
|
4.02
|
Covenants
of the Purchaser
|
9
|
|
4.03
|
Cooperation
|
9
|
|
4.04
|
Cooperation
on Tax Matters
|
10
|
|
ARTICLE
5 -
|
CONDITIONS
|
10
|
|
5.01
|
Conditions
for the Benefit of the Purchaser
|
10
|
|
5.02
|
Conditions
for the Benefit of the Vendor
|
11
|
|
ARTICLE
6 -
|
CLOSING
ARRANGEMENTS
|
12
|
|
6.01
|
Closing
|
12
|
|
6.02
|
Examination
of Records and Assets
|
12
|
|
ARTICLE
7 -
|
GENERAL
|
12
|
|
7.01
|
Further
Assurances
|
12
|
|
7.02
|
Time
of the Essence
|
12
|
|
7.03
|
Benefit
of the Agreement
|
13
|
|
7.04
|
Entire
Agreement
|
13
|
|
7.05
|
Amendments
and Waivers
|
13
|
|
7.06
|
Notices
|
13
|
|
7.07
|
Governing
Law
|
14
|
|
7.08
|
Counterparts
|
15
|
|
7.09
|
Facsimiles
|
15
|
THIS
AGREEMENT is made as of July 10, 2007
BETWEEN
GENESENSE
TECHNOLOGIES INC., a corporation incorporated under the laws of Canada
(the “Purchaser”),
- and -
4325231
CANADA INC., a corporation incorporated under the laws of Canada (the
“Vendor”).
WHEREAS
the Vendor is a life sciences company focused on the research and development
of
effective anticancer development stage therapies with high safety;
WHEREAS
the Vendor is undertaking an arrangement of its business by way of plan of
arrangement (the “Plan of Arrangement”) under Section 192(3) of
the Canada Business Corporations Act pursuant to which the Vendor will
restructure its business and obtain non-diluting financing for its biotechnology
business (the “Arrangement”);
AND
WHEREAS the Vendor, 6650309 Canada Inc. (“Newco”), the
Purchaser, XxXxxx Pharmaceuticals Inc., Pinnacle International Lands, Inc.
and
6707157 Canada Inc. entered into an arrangement agreement (the
“Arrangement Agreement”) dated as of May 1, 2007 in order to
effect the Arrangement and implement the Plan of Arrangement;
AND
WHEREAS pursuant to the Plan of Arrangement, (i) all of the Vendor’s assets and
certain of its liabilities will be transferred by the Vendor on the Effective
Date to the Purchaser pursuant to (A) the Virulizin and Small Molecule Patent
Assets Transfer Agreement, (B) the Prepaid Expenses and Receivables Transfer
Agreement, and (C) this Agreement, and (ii) the Purchaser will transfer the
Antisense Patent Assets to Newco pursuant to the AntiSense Patent Assets
Transfer Agreement;
AND
WHEREAS the Vendor desires to sell and transfer and the Purchaser desires
to
purchase the Purchased Assets upon and subject to the terms and conditions
set
out in this Agreement;
NOW
THEREFORE, in consideration of the covenants and agreements herein contained,
the parties agree as follows:
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1
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ARTICLE
1 - INTERPRETATION
|
1.01
|
Definitions
|
Capitalized
terms not otherwise defined in this Agreement shall have the meanings given
to
them in the Arrangement Agreement. In this Agreement, unless
something in the subject matter or context is inconsistent
therewith:
“Agreement”
means this asset purchase agreement, including its recitals and schedules,
as
amended from time to time.
“Applicable
Law” means
|
|
(i)
|
any
applicable domestic or foreign law including any statute, subordinate
legislation or treaty, and
|
|
|
(ii)
|
any
applicable guideline, directive, rule, standard, requirement, policy,
order, judgment, injunction, award or decree of a Governmental
Authority
having the force of law.
|
“Arrangement”
has the meaning set forth in the recitals.
“Arrangement
Agreement” has the meaning set forth in the recitals.
“Books
and Records” means all books and records relating to the Vendor, other
than the Vendor’s minute books.
“Business
Day” means a day other than a Saturday, Sunday or statutory holiday
in
the Province of Ontario.
“Charges”
means all liens, charges, encumbrances and/or rights of
others.
“Claims”
means all losses, damages, expenses, liabilities (whether accrued, actual,
contingent, latent or otherwise), claims and demands of whatever nature or
kind
including all legal fees and costs on a solicitor and client basis.
“Closing
Balance Sheet” has the meaning set forth in Section 2.05.
“Closing
Date” means July 10, 2007 or such other date as may be agreed to in
writing between the Vendor and the Purchaser.
“Closing
Statement” has the meaning set forth in Section 2.05.
“Governmental
Authority” means any domestic or foreign legislative, executive,
judicial or administrative body or person having or purporting to have
jurisdiction in the relevant circumstances.
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2
-
“Head
Office Lease” the lease agreement dated July 27, 2001, as amended April
15, 2005, between 565991 Ontario Limited and the Vendor in connection with
the
premises located at 0 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx
“Intellectual
Property” means intellectual property of any nature and kind owned or
leased by the Vendor including all domestic and foreign trade-marks, business
names, trade names, domain names, trading styles, patents, trade secrets,
software, industrial designs and copyrights, whether registered or unregistered,
and all applications for registration thereof, and inventions, formulae,
recipes, product formulations, processes and processing methods, technology
and
techniques, and know-how, and any confidential information, including any
submissions to a regulatory authority, clinical trial results, any goodwill
associated with trade-marks, business names, trade names, domain names and
the
like and the waiver of any moral rights in any copyright excluding the (i)
AntiSense Patent Assets and (ii) the Virulizin and Small Molecule Patent
Assets.
“Newco”
has the meaning set forth in the recitals.
“Plan
of Arrangement” has the meaning set forth in the recitals.
“Permits
and Licences” means all permits, consents, waivers, licences,
certificates, approvals, authorizations, registrations, franchises, rights,
privileges and exemptions, or any item with a similar effect, issued or granted
by any person.
“Purchase
Price” has the meaning set out in Section 2.02.
“Purchased
Assets” means the assets described in Schedule A and the Remaining
Assets.
“Remaining
Assets” means any undertaking, property and asset of the Vendor, other
than:
|
|
(a)
|
assets
which are being transferred to the Purchaser
under:
|
|
|
(i)
|
the
Antisense Patent Assets Transfer
Agreement;
|
|
|
(ii)
|
the
Virulizin and Small Molecule Patent Assets Transfer
Agreement;
|
|
|
(iii)
|
the
Prepaid Expenses and Receivables Transfer
Agreement;
|
|
|
(iv)
|
the
GeneSense Share Purchase Agreement;
and
|
|
|
(v)
|
the
XxXxxx Share Purchase Agreement;
|
|
|
(b)
|
the
assets described in Schedule A; and
|
|
|
(c)
|
any
cash and cash equivalents to remain in Old Lorus as contemplated
in the
Plan of Arrangement.
|
“Remaining
Contracts” means any contracts of the Vendor other than the Head Office
Lease, those contracts which are being transferred to the Purchaser under
the
Virulizin and Small Molecule Patent Assets Transfer Agreement and the Prepaid
Expenses and Receivables Transfer Agreement and such other contracts as may
be
agreed in writing between the Purchaser and the Vendor on or prior to the
Closing Date.
“Share”
means a common share in the capital of the Purchaser.
“Statements”
has the meaning set forth in Section 2.05.
-
3
-
“Tax”
and “Taxes” means, with respect to any entity, all forms of
taxation or tax, duties, charges (including, for the avoidance of doubt,
any
specific business tax or sales tax, corporate income tax, value added tax,
stamp
duty), levy, assessment, impost, surcharge, duty or other charge or withholding
of a similar nature or other governmental charges of any nature imposed by
any
foreign or local Governmental Authority (including any penalty, interest,
fine,
or addition thereto, whether disputed or not, payable in connection with
any
failure to pay or any delay in paying any of the same) or any other amount
imposed on, or in respect of, any of the above.
“Tax
Act” means the IncomeTax Act (Canada).
“Tax
Returns” means all returns, reports, declarations, statements, bills,
schedules, forms or written information of, or in respect of, Taxes that
are, or
are required to be, filed with or supplied to any Taxation
Authority.
“Taxation
Authority” means any government, agency or authority that is entitled
to impose Taxes or to administer any applicable Tax legislation.
“Time
of Closing” means 12:01 a.m. (Toronto Time) on the Closing
Date.
“Transfer
Taxes” has the meaning set out in Section 4.02(1).
“Unadjusted
Assets” means the Intellectual Property, customer lists, Books and
Records, Permits and Licenses, the Head Office Lease and the Remaining
Contracts.
|
1.02
|
Headings
|
The
division of this Agreement into Articles and Sections and the insertion of
a
table of contents and headings are for convenience of reference only and
do not
affect the construction or interpretation of this Agreement. The
terms “hereof”, “hereunder” and similar expressions refer to this Agreement and
not to any particular Article, Section or other portion
hereof. Unless something in the subject matter or context is
inconsistent therewith, references herein to Articles, Sections and Schedules
are to Articles and Sections of and Schedules to this Agreement.
|
1.03
|
Extended
Meanings
|
In
this Agreement words importing the singular number only include the plural
and
vice versa, words importing any gender include all genders and words
importing persons include individuals, corporations, limited and unlimited
liability companies, general and limited partnerships, associations, trusts,
unincorporated organizations, joint ventures and Governmental
Authorities. The term “including” means “including without limiting
the generality of the foregoing”.
-
4
-
|
1.04
|
Statutory
References
|
In
this Agreement, unless something in the subject matter or context is
inconsistent therewith or unless otherwise herein provided, a reference to
any
statute is to that statute as now enacted or as the same may from time to
time
be amended, re-enacted or replaced and includes any regulations made
thereunder.
|
1.05
|
Accounting
Principles
|
Wherever
in this Agreement reference is made to a calculation to be made or an action
to
be taken in accordance with generally accepted accounting principles, such
reference will be deemed to be to the generally accepted accounting principles
from time to time approved by the Canadian Institute of Chartered Accountants,
or any successor institute, applicable as at the date on which such calculation
or action is made or taken or required to be made or taken.
|
1.06
|
Currency
|
All
references to currency herein are to lawful money of Canada.
|
1.07
|
Schedules
|
The
following are Schedules to this Agreement:
Schedule
A - Purchased Assets; and
Schedule
2.03 - Purchase Price
Allocation.
ARTICLE
2 - SALE AND PURCHASE
|
2.01
|
Assets
to be Sold and
Purchased
|
Upon
and subject to the terms and conditions hereof, the Vendor will sell, assign,
transfer and convey to the Purchaser and the Purchaser will purchase from
the
Vendor, at the Time of Closing, all of the right, title, benefit and interest
of
the Vendor in and to the Purchased Assets.
|
2.02
|
Purchase
Price
|
The
purchase price payable to the Vendor for the Purchased Assets (such amount
being
hereinafter referred to as the “Purchase Price”) will
be:
|
|
(a)
|
in
respect of the Purchased Assets, other than the Unadjusted Assets,
[XXX], subject to adjustment in accordance with Section
2.05; and
|
|
|
(b)
|
in
respect of each of the Unadjusted Assets, an amount equal to the
Vendor’s
cost thereof,
|
which
amounts the parties estimate to be the fair market value of the Purchased
Assets.
-
5
-
|
2.03
|
Purchase
Price Allocation
|
The
Vendor and the Purchaser agree to allocate the Purchase Price in accordance
with
the provisions of Schedule 2.03 and
to execute
and file all Tax Returns and prepare all financial statements, returns and
other
instruments on the basis of this allocation. The Vendor and the
Purchaser also agree to timely notify the other party in the event of an
examination, audit or other proceeding regarding this
allocation.
|
2.04
|
Payment
of Purchase Price
|
The
obligation of the Purchaser to pay the Purchase Price to the Vendor will
be
satisfied in full and evidenced by the issuance and delivery by the Purchaser
of
one (1) Share to the Vendor at the Time of Closing.
|
2.05
|
Closing
Adjustment
|
(1) On
or before the date that is 90 days after the Closing Date,
the Purchaser will prepare and deliver to the Vendor an unaudited balance
sheet
as at the Closing Date (the “Closing Balance Sheet”) and a
statement of adjustments (the “Closing Statement” and, together
with the Closing Balance Sheet, the “Statements”) detailing the
particulars of any required adjustments in the calculation of the Purchase
Price
with respect to the Purchased Assets other than the Unadjusted
Assets. If requested by the Vendor, the Purchaser will permit the
Vendor and its auditors and other representatives to review the working papers
and other documentation used or prepared in connection with the preparation
of,
or that otherwise form the basis of, the Statements.
(2) If
the Closing Statement, as determined by the Purchaser, exceeds, or is less
than,
the Purchase Price, the Purchase Price will be increased or decreased
accordingly.
|
2.06
|
Non-Assignable
Contracts and
Commitments
|
|
(1)
|
The
Vendor will use commercially reasonable efforts (other than the
payment of
money or assumption of obligations) to obtain any third party consents
or
waivers necessary to permit the assignment to, and assumption by,
the
Purchaser of all of the contracts and other commitments to be assigned
to
and assumed by the Purchaser pursuant to this
Agreement.
|
|
(2)
|
Nothing
in this Agreement will constitute an agreement to assign or an
attempted
assignment of any contract or other commitment for which any requisite
consent or waiver to the assignment thereof has not been
obtained. To the extent permitted by Applicable Law, if any
requisite consent or waiver to the assignment thereof has not been
obtained on or prior to the Time of Closing, the applicable contract
or
other commitment will be held by the Vendor in trust for the benefit
of
the Purchaser and the Purchaser will perform the obligations of
the Vendor
thereunder and be entitled to receive all money becoming due and
payable
under and other benefits derived from the contract or other commitment
immediately after receipt by the
Vendor.
|
-
6
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ARTICLE
3 - REPRESENTATIONS AND WARRANTIES
|
3.01
|
Vendor’s
Representations and
Warranties
|
The
Vendor hereby makes to the Purchaser the following representations and
warranties and acknowledges that the Purchaser is relying upon such
representations and warranties in connection with entering into this
Agreement.
|
|
(a)
|
The
Vendor is a corporation duly incorporated, organized and subsisting
under
the laws of Canada with the corporate power to own its assets and
to carry
on its business.
|
|
|
(b)
|
The
Vendor has the power, authority and right to enter into and deliver
this
Agreement and to complete the transactions contemplated to be completed
by
the Vendor hereunder.
|
|
|
(c)
|
This
Agreement constitutes a valid and legally binding obligation of
the
Vendor, enforceable against the Vendor in accordance with its terms
subject to applicable bankruptcy, insolvency, reorganization and
other
laws of general application limiting the enforcement of creditors’ rights
generally and to the fact that specific performance is an equitable
remedy
available only in the discretion of the
court.
|
|
|
(d)
|
Neither
the entering into nor the delivery of this Agreement nor the completion
of
the transactions contemplated hereby by the Vendor will result
in the
violation of:
|
|
|
(i)
|
any
of the provisions of the constating documents or by-laws of the
Vendor;
|
|
|
(ii)
|
any
agreement or other instrument to which the Vendor is a party or
by which
the Vendor is bound; or
|
|
|
(iii)
|
any
Applicable Law.
|
|
|
(e)
|
The
Vendor is registered under Part IX of the Excise Tax Act (Canada)
with registration number 13175 3915
RT0001.
|
|
|
(f)
|
The
Vendor is not a non-resident person within the meaning of section
116 of
the Tax Act.
|
|
|
(g)
|
The
Vendor has duly elected in prescribed form and jointly with the
Purchaser
to have the rules contained in subsection 156(2) of Part IX of
the
Excise Tax Act (Canada) apply to the purchase and sale of the
Purchased Assets contemplated hereunder, which election remains
valid and
in effect.
|
-
7
-
|
3.02
|
Purchaser’s
Representations and
Warranties
|
The
Purchaser hereby makes to the Vendor the following representations and
warranties and acknowledges that the Vendor is relying upon such representations
and warranties in connection with entering into this Agreement:
|
|
(a)
|
The
Purchaser is a corporation duly incorporated, organized and subsisting
under the laws of Canada with the corporate power to own its assets
and to
carry on its business.
|
|
|
(b)
|
The
Purchaser has the power, authority and right to enter into and
deliver
this Agreement and to complete the transactions contemplated to
be
completed by the Purchaser
hereunder.
|
|
|
(c)
|
This
Agreement constitutes a valid and legally binding obligation of
the
Purchaser, enforceable against the Purchaser in accordance with
its terms
subject to applicable bankruptcy, insolvency, reorganization and
other
laws of general application limiting the enforcement of creditors’ rights
generally and to the fact that specific performance is an equitable
remedy
available only in the discretion of the
court.
|
|
|
(d)
|
Neither
the entering into nor the delivery of this Agreement nor the completion
of
the transactions contemplated hereby by the Purchaser will result
in a
violation of:
|
|
|
(i)
|
any
of the provisions of the constating documents or by-laws of the
Purchaser;
|
|
|
(ii)
|
any
agreement or other instrument to which the Purchaser is a party
or by
which the Purchaser is bound; or
|
|
|
(iii)
|
any
Applicable Law.
|
|
|
(e)
|
The
Purchaser is registered under Part IX of the Excise Tax Act
(Canada) with registration number 88289 4165
RT0001.
|
|
|
(f)
|
The
Purchaser has duly elected in prescribed form and jointly with
the Vendor
to have the rules contained in subsection 156(2) of Part IX of
the
Excise Tax Act (Canada) apply to the purchase and sale of the
Purchased Assets contemplated hereunder, which election remains
valid and
in effect.
|
|
3.03
|
Survival
of Representations, Warranties and
Covenants
|
|
(1)
|
The
respective representations and warranties of the Vendor and the
Purchaser
contained in this Agreement shall survive the completion of the
sale and
purchase of the Purchased
|
-
8
-
|
|
Assets
herein provided for and, notwithstanding such completion, will
continue in
full force and effect for a period of two years from
the Closing Date.
|
|
(2)
|
The
respective covenants of the Vendor and the Purchaser contained
in this
Agreement shall survive the completion of the sale and purchase
of the
Purchased Assets herein provided for and, notwithstanding such
completion,
shall continue in full force and effect for the benefit of the
Vendor or
the Purchaser, as applicable, in accordance with the terms
thereof.
|
ARTICLE
4 - COVENANTS
|
4.01
|
Covenants
of the Vendor
|
|
(1)
|
The
Vendor, immediately after the Closing Date at the Purchaser’s expense and
written direction, will file all necessary notices with all relevant
Governmental Authorities evidencing the sale of the Purchased Assets
to
the Purchaser.
|
|
4.02
|
Covenants
of the Purchaser
|
|
(1)
|
The
Purchaser will be liable for and will pay, or will cause to be
paid, all
transfer, value added, ad-valorem, excise, sales, use,
consumption, goods or services, harmonized sales, retail sales,
social
services, or other similar taxes or duties (collectively,
“Transfer Taxes”) payable under any Applicable Law on or
with respect to the sale and purchase of the Purchased Assets under
this
Agreement. The Purchaser will prepare and file any affidavits
or returns required in connection with the foregoing at its own
cost and
expense. To the extent that any Transfer Taxes are required to
be paid by or are imposed upon the Vendor, the Purchaser will reimburse,
or will cause to be reimbursed, to the Vendor such taxes within
five
Business Days of payment of such taxes by the Vendor. All
amounts payable by the Purchaser to the Vendor hereunder do not
include
Transfer Taxes.
|
|
(2)
|
The
Purchaser shall provide the Vendor with a purchase exemption certificate
for any tangible Purchased Assets that are exempt from Ontario
retail
sales tax.
|
|
4.03
|
Cooperation
|
Each
of the Purchaser and the Vendor shall use commercially reasonable efforts,
at
the expense of the Purchaser, to provide such information and assistance
as is
reasonably necessary to assist the Purchaser in obtaining all necessary
consents, approvals, conveyances, assurances, assignments or any other
documentation necessary or reasonably required by the Purchaser to transfer
all
of the Vendor’s right, title and interest in and to the Purchased Assets to the
Purchaser, subject to all existing Charges.
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9
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|
4.04
|
Cooperation
on Tax Matters
|
Each
of the Vendor and the Purchaser will, to the extent reasonably within such
party’s control, taking into account such party’s access to books and records,
furnish or cause to be furnished to each other, at the expense of the Purchaser,
as promptly as practicable, such information and assistance, and provide
additional information and explanations of any materials provided, relating
to
the Purchased Assets as is reasonably necessary for the filing of any tax
returns, for the preparation of any audit, and for the prosecution or defence
of
any Claim, suit or proceeding relating to any adjustment or proposed adjustment
with respect to taxes.
ARTICLE
5 - CONDITIONS
|
5.01
|
Conditions
for the Benefit of the
Purchaser
|
|
(1)
|
The
sale by the Vendor and the purchase by the Purchaser of the Purchased
Assets is subject to the following conditions, which are for the
exclusive
benefit of the Purchaser and which are to be performed or complied
with at
or prior to the Time of Closing:
|
|
|
(a)
|
the
representations and warranties of the Vendor set forth in Section
3.01
will be true and correct at the Time of Closing with the same force
and
effect as if made at and as of such
time;
|
|
|
(b)
|
the
Vendor will have performed or complied with all of the terms, covenants
and conditions of this Agreement to be performed or complied with
by the
Vendor at or prior to the Time of
Closing;
|
|
|
(c)
|
the
Purchaser will be furnished with such certificates or other instruments
(including instruments of conveyance with respect to the Purchased
Assets)
of the Vendor or of officers of the Vendor as the Purchaser or
the
Purchaser’s counsel may reasonably think necessary in order to establish
that the terms, covenants and conditions contained in this Agreement
to
have been performed or complied with by the Vendor at or prior
to the Time
of Closing have been performed or complied with and that the
representations and warranties of the Vendor herein given are true
and
correct at the Time of Closing;
|
|
|
(d)
|
there
will have been obtained from all appropriate Governmental Authorities
such
approvals or consents as are required to permit the change of ownership
of
the Purchased Assets contemplated
hereby;
|
|
|
(e)
|
no
action or proceeding in Canada will be pending or threatened by
any
person, or Governmental Authority to enjoin, restrict or prohibit
the sale
and purchase of the Purchased Assets contemplated hereby;
and
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|
|
(f)
|
all
necessary steps and proceedings will have been taken to permit
the
Purchased Assets to be duly and regularly transferred to and registered
in
the name of the Purchaser.
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-
10
-
|
(2)
|
In
case any term or covenant of the Vendor or condition to be performed
or
complied with for the benefit of the Purchaser at or prior to the
Time of
Closing has not been performed or complied with at or prior to
the Time of
Closing, the Purchaser, without limiting any other right that the
Purchaser has, may at its sole option
either:
|
|
|
(a)
|
rescind
this Agreement by notice to the Vendor, and in such event the Purchaser
will be released from all obligations hereunder;
or
|
|
|
(b)
|
waive
compliance with any such term, covenant or condition in whole or
in part
on such terms as may be agreed upon without prejudice to any of
its rights
of rescission in the event of non-performance of any other term,
covenant
or condition in whole or in part;
|
and,
if the Purchaser rescinds this Agreement pursuant to Section 5.01(2)(a),
the
Vendor will also be released from all obligations hereunder unless the term,
covenant or condition for which the Purchaser has rescinded this Agreement
was
one that the Vendor had covenanted to ensure had been performed or complied
with, in which event the Vendor will be liable to the Purchaser for any Claims
incurred by the Purchaser directly or indirectly as a result of such
breach.
|
5.02
|
Conditions
for the Benefit of the
Vendor
|
|
(1)
|
The
sale by the Vendor and the purchase by the Purchaser of the Purchased
Assets is subject to the following conditions, which are for the
exclusive
benefit of the Vendor and which are to be performed or complied
with at or
prior to the Time of Closing:
|
|
|
(a)
|
the
representations and warranties of the Purchaser set forth in Section
3.02
will be true and correct at the Time of Closing with the same force
and
effect as if made at and as of such
time;
|
|
|
(b)
|
the
Purchaser will have performed or complied with all of the terms,
covenants
and conditions of this Agreement to be performed or complied with
by the
Purchaser at or prior to the Time of Closing;
and
|
|
|
(c)
|
the
Vendor will be furnished with such certificates or other instruments
of
the Purchaser or of officers of the Purchaser as the Vendor or
the
Vendor’s counsel may reasonably think necessary in order to establish
that
the terms, covenants and conditions contained in this Agreement
to have
been performed or complied with by the Purchaser at or prior to
the Time
of Closing have been performed or complied with and that the
representations and warranties of the Purchaser herein given are
true and
correct at the Time of Closing.
|
|
(2)
|
In
case any term or covenant of the Purchaser or condition to be performed
or
complied with for the benefit of the Vendor at or prior to the
Time of
Closing has not been performed or complied with at or prior to
the Time of
Closing, the Vendor, without limiting any other right that the
Vendor has,
may at its sole option either:
|
-
11
-
|
|
(a)
|
rescind
this Agreement by notice to the Purchaser, and in such event the
Vendor
will be released from all obligations hereunder;
or
|
|
|
(b)
|
waive
compliance with any such term, covenant or condition in whole or
in part
on such terms as may be agreed upon without prejudice to any of
its rights
of rescission in the event of non-performance of any other term,
covenant
or condition in whole or in part;
|
and,
if the Vendor rescinds this Agreement pursuant to Section 5.02(2)(a), the
Purchaser will also be released from all obligations hereunder unless the
term,
covenant or condition for which the Vendor has rescinded this Agreement was
one
that the Purchaser had covenanted to ensure had been performed or complied
with,
in which event the Purchaser will be liable to the Vendor for any Claims
incurred by the Vendor directly or indirectly as a result of such
breach.
ARTICLE
6 - CLOSING ARRANGEMENTS
|
6.01
|
Closing
|
The
sale and purchase of the Purchased Assets will be completed at the Time of
Closing at the offices of XxXxxxxx Xxxxxxxx XXX, Xxxxx 0000, Xxxxxxx
Xxxxxxxx Bank Tower, Toronto -Dominion Xxxx Xxxxxx, Xxxxxxx, Xxxxxxx X0X
0X0.
|
6.02
|
Examination
of Records and Assets
|
The
Purchaser will preserve any documents provided to it by the Vendor prior
to the
Closing Date for a period of five years from the Closing Date, or for such
other
period as is required by any Applicable Law, and will permit the Vendor and
its
authorized representatives reasonable access thereto in connection with the
affairs of the Vendor, but the Purchaser will not be responsible or liable
to
the Vendor for or as a result of any loss or destruction of or damage to
any
such documents.
ARTICLE
7 - GENERAL
|
7.01
|
Further
Assurances
|
Each
of the Vendor and the Purchaser will from time to time execute and deliver
all
such further documents and instruments and do all acts and things as the
other
party may reasonably require to effectively carry out or better evidence
or
perfect the full intent and meaning of this Agreement.
|
7.02
|
Time
of the Essence
|
Time
is of the essence of this Agreement.
-
12
-
|
7.03
|
Benefit
of the Agreement
|
This
Agreement will enure to the benefit of and be binding upon the respective
heirs,
executors, administrators, other legal representatives, successors and permitted
assigns of the parties hereto.
|
7.04
|
Entire
Agreement
|
Except
for the various collateral agreements entered into in connection with the
Arrangement, this Agreement constitutes the entire agreement between the
parties
hereto with respect to the subject matter hereof and cancels and supersedes
any
prior understandings and agreements between the parties hereto with respect
thereto. There are no representations, warranties, terms, conditions,
undertakings or collateral agreements, express, implied or statutory, between
the parties other than as expressly set forth in this Agreement.
|
7.05
|
Amendments
and Waivers
|
No
amendment to this Agreement will be valid or binding unless set forth in
writing
and duly executed by both of the parties hereto. No waiver of any
breach of any provision of this Agreement will be effective or binding unless
made in writing and signed by the party purporting to give the same and,
unless
otherwise provided, will be limited to the specific breach waived.
|
7.06
|
Notices
|
Any
demand, notice or other communication to be given in connection with this
Agreement must be given in writing and will be given by personal delivery,
by
registered mail, by facsimile or by electronic means of communication addressed
to the recipient as follows:
-
13
-
To
the Vendor:
0
Xxxxxxxx Xxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Fax
No.: 000-000-0000
Email: xxxxxxxxx@xxxxxxxxxx.xxx
Attention: Director
of Finance
To
the Purchaser:
0
Xxxxxxxx Xxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Fax
No.: 000-000-0000
Email: xxxxxxxxx@xxxxxxxxxx.xxx
Attention: Director
of Finance
or
to such other street address, individual or electronic communication number
or
address as may be designated by notice given by either party to the
other. Any demand, notice or other communication given by personal
delivery will be conclusively deemed to have been given on the day of actual
delivery thereof and, if given by registered mail, on the fourth Business
Day
following the deposit thereof in the mail and, if given by facsimile or
electronic communication, on the day of transmittal thereof if given during
the
normal business hours of the recipient and on the Business Day during which
such
normal business hours next occur if not given during such hours on any
day. If the party giving any demand, notice or other communication
knows or ought reasonably to know of any difficulties with the postal system
that might affect the delivery of mail, any such demand, notice or other
communication may not be mailed but must be given by personal delivery, by
facsimile or by electronic communication.
|
7.07
|
Governing
Law
|
This
Agreement is governed by and will be construed in accordance with the laws
of
the Province of Ontario and the laws of Canada applicable therein.
-
14
-
|
7.08
|
Counterparts
|
This
Agreement may be executed in any number of counterparts, each of which will
be
deemed to be an original and all of which taken together will be deemed to
constitute one and the same instrument.
|
7.09
|
Facsimiles
|
Delivery
of an executed signature page to this Agreement by any party by electronic
transmission will be as effective as delivery of a manually executed copy
of
this Agreement by such party.
[Remainder
of page left intentionally blank.]
-
15
-
IN
WITNESS WHEREOF the parties have executed this Agreement.
|
GENESENSE
TECHNOLOGIES INC.
|
||||
|
Per:
|
“Xxxxxx
Xxxxx”
|
|||
|
Per:
|
||||
|
4325231
CANADA INC.
|
||||
|
Per:
|
“Xxxxxx
Xxxxx”
|
|||
|
Per:
|
“Xxxxxx
Xxxxxxxx”
|
|||
-
16
-
SCHEDULE
A
All
of the Vendor’s right, title and interest in and to the following
assets:
|
|
•
|
computer
hardware;
|
|
|
•
|
computer
software;
|
|
|
•
|
machinery
and equipment;
|
|
|
•
|
office
furniture and equipment;
|
|
|
•
|
office
leaseholds;
|
|
|
•
|
new
animal facility leasehold;
|
|
|
•
|
operating
and scientific inventory;
|
|
|
•
|
Intellectual
Property;
|
|
|
•
|
customer
lists;
|
|
|
•
|
Books
and Records;
|
|
|
•
|
Permits
and Licences;
|
|
|
•
|
the
Head Office
Lease; and
|
|
|
•
|
the
Remaining Contracts.
|
SCHEDULE
2.03
Purchase
Price Allocation
|
No.
|
Purchased
Asset
|
Amount
of Purchase Price Allocated Thereto
|
|
1.
|
computer
hardware
|
[XXX]
|
|
2.
|
computer
software
|
[XXX]
|
|
3.
|
machinery
and equipment
|
[XXX]
|
|
4.
|
office
furniture and equipment
|
[XXX]
|
|
5.
|
office
leaseholds
|
[XXX]
|
|
6.
|
leasehold
- new animal facility
|
[XXX]
|
|
7.
|
operating
and scientific inventories
|
[XXX]
|
|
8.
|
Intellectual
Property, customer lists and Books and Records
|
[XXX]
|
|
9.
|
Permits
and Licences
|
[XXX]
|
|
10.
|
the
Head Office Lease
|
[XXX]
|
|
11.
|
the
Remaining Contracts
|
[XXX] The
purchase price is satisfied in full by the assumption by the
Purchaser of
all of the Vendor’s obligations and liabilities under the Remaining
Contracts.
|
|
12.
|
the
Remaining Assets
|
[XXX]
|
