SHAREHOLDERS aGREEMENT
SHAREHOLDERS aGREEMENT
by and between
Oncbiomune México, s.A. de c.v.
as the Company,
and
Vitel Laboratorios, S.A. de C.V. and OncBioMune Pharmaceuticals Inc. as Shareholders
Dated as of August 19th, 2016
TABLE OF CONTENTS
| Page | ||
| Article I DEFINITIONS | 4 | |
| Section 1.1 | Defined Terms | 4 |
| Section 1.2 | Construction | 9 |
| Article II BOARD OF DIRECTORS | ||
| Section 2.1 | Board Size | 9 |
| Section 2.2 | Shareholder Nominees; By-Law Amendment | 9 |
| Section 2.3 | Frequency of Board of Directors’ Meetings | 10 |
| Section 2.4 | Quorum and Voting Requirements | 10 |
| Article III SHAREHOLDERS’ MEETINGS; CAPITALIATION AND SHARE OWNERSHIP | 10 | |
| Section 3.1 | Frequency of Shareholders’ Meetings | 10 |
| Section 3.2 | Quorum and Voting Requirements | 11 |
| Section 3.3 | Major Decisions | 11 |
| Section 3.4 | Capitalization and Share Ownership. | 12 |
| Article IV REPRESENTATIONS AND WARRANTIES | 12 | |
| Section 4.1 | Enforceability, Etc | 13 |
| Section 4.2 | Options or Warrants.. | 13 |
| Article V ADDITIONAL RIGHTS | 13 | |
| Section 5.1 | Preemptive Rights | 13 |
| Section 5.2 | Transfer of Common Shares | 13 |
| Article VI COMPANy SUBSIDIARIES | 16 | |
| Section 6.1 | Company Subsidiaries | 16 |
| Article VII OTHER AGREEMENTS | 16 | |
| Section 7.1 | Company’s By-laws and Conflict Of Interest | 16 |
| Section 7.2 | Patents, Sanitary Registrations and Licenses | 18 |
| Section 7.3 | Board of Directors and Officers of the Company on the Closing Date. | 20 |
| Section 7.4 | Dividends | 21 |
| Section 7.5 | Funding.. | 21 |
| Article VIII FINANCIAL INFORMATION AND AUDITS | 21 | |
| Section 8.1 | Periodic Information | 21 |
| Section 8.2 | Visits and Inspection | 21 |
| Section 8.3 | Audits | 21 |
| Section 8.4 | Bank Accounts | 21 |
| Article IX MISCELLANEOUS | 22 | |
| Section 9.1 | Headings | 22 |
| Section 9.2 | Entire Agreement | 22 |
| Section 9.3 | Confidentiality | 22 |
| Section 9.4 | Further Actions; Cooperation | 22 |
| Section 9.5 | Notices | 22 |
| Section 9.6 | Applicable Law | 23 |
| Section 9.7 | Severability | 24 |
| Section 9.8 | Successors and Assigns | 24 |
| Section 9.9 | Amendments | 24 |
| Section 9.10 | Waiver | 24 |
| Section 9.11 | Counterparts | 24 |
| Section 9.12 | Injunctive Relief | 24 |
| Section 9.13 | SUBMISSION TO JURISDICTION | 24 |
| Section 9.14 | Recapitalizations, Exchanges, Etc. Affecting the Common Shares; New Issuances | 25 |
| Section 9.15 | Term | 25 |
| Section 9.16 | By-laws | 25 |
| Section 9.17 | Preferential Rights for New Projects | 25 |
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SHAREHOLDERS AGREEMENT (this “Agreement”), dated as of August 19th, 2016, is entered into by and among:
| (a) | Vitel Laboratorios, S.A. de C.V., a sociedad anónima de capital variable, duly formed under the laws of Mexico (“Vitel”) herein represented by ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Odabachian; | |
| (b) | OncBioMune Pharmaceuticals Inc., a corporation duly formed under the laws of Nevada (“OBMP” and collectively with Vitel hereinafter as the “Shareholders” and individually, each a “Shareholder”), represented herein by ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Head; | |
| (c) | Oncbiomune México, a sociedad anónima de capital variable, duly formed under the laws of Mexico (the “Company” and collectively with the Shareholders hereinafter as the “Parties” and individually each a “Party”) represented herein by ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Odabachian; |
WHEREAS, on March 17, 2016, the Shareholder executed and delivered a Memorandum of Understanding (the “MOU”), whereby, the Shareholders defined the broad parameters of a Joint Venture between them for the purposes of developing and commercializing OBMP Vaccine Technology and other OBMP cancer technologies in México, Central and Latin America for the treatment of prostate, ovarian and various other types of cancer. A complete copy of the MOU is attached hereto as Exhibit A.
WHEREAS, on May 26 2016, the Shareholders incorporated the Company in order to combine their respective assets, resources and areas of expertise for the purpose of expediting clinical development and marketing of OBMP therapeutic candidates in MALA (as such term is defined hereinbelow). A complete copy of the incorporation deed of the Company is attached hereto as Exhibit B.
WHEREAS, the Shareholders agreed to enter into this Agreement in order to govern their relationship with respect to the ownership, management and operation of the Company.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
Article I
DEFINITIONS
Section 1.1 Defined Terms. For the purposes of this Agreement, the following terms shall have the following meanings:
(a) “Affiliate” shall mean, in respect of Persons that are legal Persons, all present and future Subsidiaries, controlling partners and controlling shareholders of such Persons or other entities that are under common control with such Person; and in the case of natural Persons, the term “Affiliate” shall mean such individuals’ spouse, and any direct or indirect ascendants or descendants, including parents, grandparents, children and grandchildren.
(b) A Person shall be deemed to “Beneficially Own” securities:
(i) which such Person or any of such Person’s Affiliates, directly or indirectly, owns or has the right to acquire (whether such right is exercisable immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Person), including compliance with regulatory requirements or otherwise) pursuant to any agreement, arrangement or understanding in writing, or upon the exercise of conversion rights, exchange rights, other rights, warrants or options, or otherwise; or
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(ii) which such Person or any of such Person’s Affiliates, directly or indirectly, has the right to vote or dispose of or has “Beneficial Ownership” of (as determined pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange Act), including pursuant to any agreement, arrangement or understanding, in writing; or
(iii) which are beneficially owned, directly or indirectly, by any other Person (or any Affiliate thereof) with whom such Person (or any of such Person’s Affiliates) has any agreement, arrangement or understanding, in writing, for the purpose of acquiring, holding, voting or disposing of any Company Securities.
(c) A Person shall be deemed to “Own” securities which such Person or any of such Person’s Affiliates directly or indirectly owns or has the immediate right to acquire from a Person (other than from the Company pursuant to this Agreement) pursuant to any agreement, arrangement or understanding (whether or not in writing) or upon the exercise of conversion rights, exchange rights, other rights, warrants or options, or otherwise.
(d) “Applicable Law” shall mean, with respect to any Person, all present and future statutes, laws, ordinances, rules, orders and regulations of any Governmental Authority applicable to such Person or any of its Affiliates, or any of their respective properties or assets.
(e) “Board” shall mean the board of directors of the Company.
(f) “Business” shall mean the business and activities conducted by the Company from time to time, including the development and operation of Products in MALA.
(g) “Business Day” shall mean any day other than (i) a Saturday or a Sunday or (ii) a day on which banking and savings and loan institutions are authorized or required by law to be closed in the United States of America and in Mexico.
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(h) “By-laws” shall mean the amended by-laws of the Company discussed in Section 7.1(a) herein, and attached hereto as Exhibit E.
(i) “Common Shares” shall mean the Company’s common stock, par value MXN$1.00 (one ▇▇▇▇ ▇▇/▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇) per share, and any and all securities of any kind whatsoever of the Company that may be issued and outstanding on or after the date hereof in respect of, in exchange for, or upon conversion of common shares pursuant to a merger, amalgamation, consolidation, share split, share dividend or recapitalization of the Company or otherwise.
(j) “Company Securities” shall mean (i) any Common Shares and (ii) any other securities of the Company entitled to vote generally including without limitation, in the election of directors of the Company.
(k) “Company” shall have the meaning set forth in the Preamble of this Agreement.
(l) “Dividends” shall mean any dividends (whether paid in cash, Common Shares or otherwise) or other distribution (in cash or otherwise) paid to the holders of Common Shares of the Company.
(m) “Dollars or US” shall mean the legal tender of the United States of America.
(n) “Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(o) “Governmental Authority” shall mean any sovereign government or any political subdivision thereof, whether federal, state or local, any legislative or judicial body, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory, sanitary or administrative powers or functions of or pertaining to government.
(p) “Major Decision(s)” shall have the meaning set forth in Section 3.3 hereto.
(q) “MALA” shall mean all Mexico and the other the countries and territories defined in Appendix A hereof.
(r) “Minimum Price” shall have the meaning set forth in Section 5.2(b)(i) hereto.
(s) “New Securities” means any Common Shares of the Company issued after the date hereof as a result of an increase in the capital stock of the Company.
(t) “Notice of Exercise” shall have the meaning set forth in Section 5.2(b)(ii) hereto.
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(u) “OBMP” shall have the meaning set forth in the Preamble of this Agreement.
(v) “Offered Shares” shall have the meaning set forth in Section 5.2(b)(i) hereto.
(w) “Party” shall have the meaning set forth in the Preamble of this Agreement.
(x) “Patents” For purposes of this Agreement, the term patents and patent applications obtained by OBMP in the U.S. and other countries shall mean:
- the patents and patent applications set forth in Exhibit F and such patents and patent applications along with any supplemental or additional patent applications or registrations or divisionals, reissues, re-examination certificates, continuations, or provisional applications filed in the future by OBMP that include the Protein Therapeutic Cancer Vaccine identified in such patents for any or all cancer treatment uses shall be collectively referred to as, the “Base Patents”;
- all future improvements of the technology disclosed in the Base Patents, including, but not limited to, any additional patent applications that include the Protein Therapeutic Cancer Vaccine for all cancer treatment uses and supplemental or additional patent registrations or divisionals, reissues, re-examination certificates, continuations, or provisional applications filed in the future with respect to the Base Patents shall be collectively referred to as, the “Derivative Patents”; and
- all future technology, patents and/or patent applications which include subject matter related to any and all Cancer therapeutic treatments, medicine, drugs, vaccines, cures, alternative medicine, arboreal therapy, and/or surgical instruments, apparatus and/or technics, as same may be subject to be protected by a patent in any country and shall be collectively referred to as, the “Other Patents”.
(y) “Permitted Transferee” shall have the meaning set forth in Section 5.2(a) hereto.
(z) “Permitted Transfer” means any Transfer carried out by a Shareholder to a Permitted Transferee pursuant to the terms of this Agreement.
(aa) “Person” shall mean any individual, firm, corporation, partnership, limited liability company, business organization (under any form), trust or other entity, and shall include any successor (by merger, amalgamation or otherwise) of such entity.
(bb) “Pipeline Products” shall mean the products set forth in Exhibit C and/or that use or are based on the technology included in the Patents, Base Patents, the Derivative Patents, the Other Patents or use the Trademarks.
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(cc) “Products” shall mean, the products set forth in Exhibit D hereto, the Pipeline Products, OBMP Vaccine Technology, OBMP cancer technologies for the treatment of prostate, ovarian and various other types of cancer and any other technology for medical treatment, drug or medical treatment that use or are based on the technology included in the Patents, Base Patents, the Other Patents or the Derivative Patents or use the Trademarks.
(dd) “Project” shall mean the development and commercialization the Products.
(ee) “Right of First Refusal” shall have the meaning set forth in Section 5.2(b) hereto.
(ff) “ROFR Deposit” shall have the meaning set forth in Section 5.2(b)(iii) hereto.
(gg) “ROFR Exercise Period” shall have the meaning set forth in Section 5.2(b)(ii) hereto.
(hh) “ROW” shall mean all the countries and territories in the world with exception of the United States of America and MALA.
(ii) “ROW Opportunity” shall have the meaning set forth in Section 9.17 hereto.
(jj) “Shareholder Director” shall mean the Shareholder Nominee, if any, who are elected or appointed to serve as members of the Board in accordance with this Agreement.
(kk) “Shareholders’ Meeting” shall have the meaning set forth in Section 3.1.
(ll) “Shareholder Nominee” shall mean such Persons as are so designated by the Shareholders, as such designations may change from time to time in accordance with this Agreement, to serve as members of the Board pursuant to Section 3.2.
(mm) “Shareholders” shall mean Vitel, OBMP and each Permitted Transferee who becomes a party to or bound by the provisions of this Agreement in accordance with the terms hereof.
(nn) “Third Party Purchaser” shall have the meaning set forth in Section 5.2(b)(i) hereto.
(oo) “Third Party Sale Agreement” shall have the meaning set forth in Section 5.2(b)(vi) hereto.
(pp) “Trademarks” shall have the meaning set forth in Section 5.2(b)(vi) hereto.
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(qq) “Transfer” shall mean, with respect to any Company Securities, (i) when used as a verb, to sell, assign, dispose of, exchange, pledge, charge, encumber, hypothecate or otherwise transfer such Company Securities or any participation or interest therein, whether directly or indirectly (including by means of any hedging or derivative transactions that may have a similar effect to the foregoing), or agree or commit to do any of the foregoing; and (ii) when used as a noun, a direct or indirect sale, assignment, disposition, exchange, pledge, charge, encumbrance, hypothecation, or other transfer of such Company Securities or any participation or interest therein (or any hedging or derivative transactions that may have a similar effect to the foregoing) or any agreement or commitment to do any of the foregoing.
(rr) “Vitel” shall have the meaning set forth in the Preamble of this Agreement.
(ss) “Voting Power of the Company” shall mean the total number of votes that may be cast in the election of directors of the Company if all Company Securities were present and voted at a meeting held for such purpose.
Section 1.2 Construction. For the purposes of this Agreement: (i) words (including capitalized terms defined herein) in the singular shall be held to include the plural and vice versa, and words (including capitalized terms defined herein) of one gender shall be held to include the other gender as the context requires; (ii) the terms “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and Article and Section references are to Articles and Sections of this Agreement, unless otherwise specified; (iii) the word “including” and words of similar import when used in this Agreement shall mean “including, without limitation,”; (iv) all references to any period of days shall be deemed to be to the relevant number of calendar days unless otherwise specified; and (v) all references herein to “$” or dollars shall refer to United States dollars, unless otherwise specified.
Article
II
BOARD OF DIRECTORS
Section 2.1 Board Size. The administration and management of the Company will be vested in a Board. The Board of the Company shall have four (4) principal directors, each of which may have an alternate director. For so long as this Agreement is in effect, the Board shall not have more than the number of directors aforementioned or, in lieu of any such agreement, as provided in the Company’s By-laws.
Section 2.2 Shareholder Nominees; By-Laws Amendment.
(a) So long as any Shareholder has Ownership of:
(i) Twenty five percent (25%) or more of the Voting Power of the Company, any Shareholder shall be entitled to designate in the Company two (2) Shareholder Nominees and their respective alternates;
(ii) Twenty five percent (25%) of the Voting Power of the Company, any Shareholder shall not be entitled to designate in the Company any Shareholder Nominees or their alternates.
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Every alternate member of the Board will have the right to attend meetings of the Board and to vote at such meetings only in the absence of its respective principal member. Principal or alternate directors may only be removed and appointed by the Shareholder(s) that appointed such directors.
(b) So long as OBPM owns at least fifty percent (50%) or more of the Voting Power, it shall have the right to appoint the Chairman of the Company’s Board of Directors.
Section 2.3 Frequency of Board of Directors’ Meetings. The Board shall meet at least four (4) times (quarterly) during each fiscal year, or whenever a meeting is called in accordance with the Company’s By-laws, at the Company’s corporate domicile or abroad, as established in the corresponding call.
The Parties hereby agree that meetings of the Board may be carried out by telephone conference or by any other means that allows for the effective participation of the members of the Board. In such cases, the resolutions adopted thereat will be valid only upon execution of written resolutions in compliance with the Mexican corporate law (Ley General de Sociedades Mercantiles).
Section 2.4 Quorum and Voting Requirements. The Board Meetings of the Company shall be legally convened and held pursuant to the Company’s By-laws (i) a first call, if at least the majority of its members shall be present; provided that, at least one member appointed by OBMP and one member appointed by Vitel shall be present, and (ii) to a second or subsequent call, if at least the majority of its members shall be present, provided that, at least one member appointed by OBMP and one member appointed by Vitel shall be present.
Except in the case of Major Decisions which will be subject to the attendance and voting requirements set forth in Section 3.3 of this Agreement, the resolutions adopted by the Board shall be valid if they are adopted by the majority of the members in attendance at the relevant meeting.
Article
III
SHAREHOLDERS’ MEETINGS; CAPITALIZATION AND
SHARE OWNERSHIP
Section 3.1 Frequency of Shareholders’ Meetings. The general shareholders’ meeting of the Company (each, a “Shareholders’ Meeting”) shall be convened at least once every fiscal year, or whenever a meeting is called in accordance with the Company’s By-laws, at the Company’s corporate domicile or abroad, if established in the corresponding call.
The Parties hereby agree that meetings of the Shareholders may be carried out by telephone conference or by any other means that allows for the effective participation of the Shareholders. In such cases, the resolutions adopted thereat will be valid only upon execution of written resolutions in compliance with the Mexican corporate law (Ley General de Sociedades Mercantiles).
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Section 3.2 Quorum and Voting Requirements. Shareholders’ Meetings of the Company shall be legally held, pursuant to (i) a first call, if at least fifty-one percent (51.0%) of the outstanding Common Shares of the Company is represented at the meeting and (ii) a second or subsequent call, if at least fifty-one percent (51.0%) of the Common Shares of the Company is represented at the meeting.
The resolutions of the Shareholders’ Meeting shall be valid if they are adopted by the vote of at least fifty-one percent (51.0%) of the Common Shares of the Company duly represented at the relevant meeting.
In the case of Shareholders’ Meetings of the Company or held to discuss and/or vote Major Decisions, such meetings shall be legally held, pursuant to (i) a first call, if at least seventy-five percent (75.0%) of the outstanding Common Shares of the Company are represented at the meeting and (ii) a second or subsequent call, if at least seventy-five percent (75.0%) of the Common Shares of the Company are represented at the meeting. The resolutions of the Shareholders’ Meeting shall be valid if (i) they are adopted by the vote of at least seventy-five percent (75.0%) of the Common Shares of the Company duly represented at the relevant meeting and (ii) both OBMP and Vitel are duly represented at such meeting.
Section 3.3 Major Decisions. Notwithstanding anything to the contrary contained herein or in the By-laws of the Company, and subject to the respective authority of the Shareholders’ Meeting or the Board of Directors under Applicable Law and the By-laws of the Company, as the case may be, the following matters may only be carried out by the Company (each a “Major Decision” and collectively, the “Major Decisions”) if previously approved (i) pursuant to the requirements for Major Decisions set forth in Section 3.2 above or (ii) by a Board of Directors’ Meeting of the Company with the attendance and affirmative vote of a principal or alternate member of the Board of Directors of the Company appointed by each of the Parties:
(a) Creating, authorizing a capital increase of or issuing any equity or equity-like security;
(b) Any amalgamation, merger, spin-off, consolidation, sale, reconstitution, reorganization, restructuring or similar transaction;
(c) Any liquidation, winding up, etc., of the Company or any listing or delisting of shares, or any private or public offering of shares or any de-listing of the shares of the Company;
(d) Any amendment, alteration, change or addition to or repeal of the By-laws of the Company;
(e) Any change to the Business of the Company;
(f) Any incurrence of any indebtedness or guarantees which involve amounts exceeding US$10,000 (ten thousand 00/100 Dollars) per quarter;
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(g) The exercise of all corporate rights (including but not limited to, voting rights, redemption rights and preferential rights) attached to or derived from the Company’s interest in any subsidiary of the Company;
(h) The determination, amendment or termination of the Company’s dividend policy;
(i) The determination, amendment or termination of the annual plan, annual budget and business plan of the Company and of any subsidiaries of the Company;
(j) Approval of the audited financial statements of the Company and of any subsidiary of the Company, where applicable;
(k) The appointment and removal of the Company’s external auditors;
(l) To the extent not specifically approved by the board the disposition (including, without limitation, the sale or the creation of any lien and encumbrances) of any assets or capital investments by the Company outside of the ordinary course of Business of the Company;
(m) Except for Permitted Transfers, any transfer of equity interests of the Company in any subsidiary of the Company;
(n) The filing by the Company of any lawsuit or the initiation of any formal alternative dispute resolution procedure;
(o) The creation of any subsidiary, except as contemplated in the Company’s business plan;
(p) Except for Permitted Transfers, the admission of any new shareholder to the Company; and
(q) The granting of powers of attorney for acts of domain in México or its equivalent in any other jurisdiction where the Company pursues business opportunities.
Section 3.4 Capitalization and Share Ownership.
(a) The Company is authorized to issue 10,000 (ten thousand) shares of Common Stock, of which 5,000 (five thousand) shares have been subscribed for and issued to OBMP and 5,000 (five thousand) shares have been subscribed for and issued to Vitel. The issued and outstanding shares are validly issued, fully paid, and non-assessable and not issued in violation of the preemptive or other rights of any person.
Article
IV
REPRESENTATIONS AND WARRANTIES
(a) Each Shareholder hereby represents and warrants to the Company and to each other Shareholder as follows:
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Section 4.1 Enforceability, Etc. This Agreement has been duly executed and delivered by such Shareholder. This Agreement constitutes a legal, valid and binding obligation of such Shareholder, enforceable against such Shareholder in accordance with its terms, subject to any limitations imposed, if applicable, by bankruptcy, insolvency, or other laws of general application relating to enforcement of creditors’ rights or general equity principles.
(b) The Company hereby represents and warrants to each of the Shareholders as follows:
Section 4.2 Options or Warrants. Except for the Shareholders’ statutory preferential right to subscribe any shares issued by the Company in connection with capital stock increases, there are no options, warrants, convertible securities, subscriptions, stock appreciation rights, phantom stock plans or stock equivalents or other rights, agreements, arrangements or commitments (contingent or otherwise) of any character issued or authorized by the Company relating to the issued or unissued capital stock of the Company (including, without limitation, rights the value of which is determined with reference to the capital stock or other securities of the Company) or obligating the Company to issue or sell any shares of capital stock of, or options, warrants, convertible securities, subscriptions or other equity interests in, the Company. There are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any shares of the Company Common Stock of the Company or to pay any dividend or make any other distribution in respect thereof or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any person.
Article
V
ADDITIONAL RIGHTS
Section 5.1 Preemptive Rights. Each of the Shareholders of the Company shall have preemptive rights to subscribe and pay its respective pro-rata share, based on its respective percentage of ownership interest in the Company, of any New Securities that the Company may from time to time issue pursuant to the terms and conditions established in the By-laws of the Company, provided that none of the Shareholders will be entitled to endorse or otherwise transfer their preemptive rights. The Shareholders shall have the right, for a period of 30 (thirty) Business Days after delivery of notice, to purchase from the Company the New Securities for the same consideration per security and on the same terms as were applicable to such issuance by the Company.
Section 5.2 Transfer of Common Shares.
(a) Permitted Transfers. (i) Notwithstanding anything to the contrary in this Agreement, the Shareholders may at any time, without being subject to Section 5.2(b), Transfer their respective Common Shares (x) to any of their Affiliates thereof (the “Permitted Transferees”), or (y) with the prior consent of the other Parties to this Agreement, or (z) as otherwise permitted under this Agreement.
(ii) If a Permitted Transferee ceases to be an Affiliate of the Shareholder who Transferred Common Shares to such Permitted Transferee, the Shares shall automatically revert or otherwise be transferred back to the original Shareholder. The agreement or other instrument pursuant to which a Shareholder carries out a Permitted Transfer must specifically contain a provision expressly contemplating the reversion of Shares or unwinding of the Permitted Transfer should the transferee cease to be a Permitted Transferee at any time after the corresponding Transfer. If according to the applicable law such reversion is not permitted or the transferring Shareholders does not accept such reversion, then the non-transferring Shareholder of the Company shall be entitled to: (x) acquire directly or through a subsidiary, the totality of the Shares of the Permitted Transferee that ceased to be an Affiliate, (y) to request the Company to carry out a capital reduction in order to redeem the Shares of the Permitted Transferee that ceased to be an Affiliate or (z) a combination of the rights set forth in (x) and (y) of this subsection (ii). The agreement or other instrument pursuant to which a Shareholder carries out a Permitted Transfer must specifically contain a provision expressly granting such rights to the non-transferring Shareholder.
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(iii) Each Shareholder shall previously notify in writing the other Shareholders and the Company of any Permitted Transfer.
(iv) Any attempted Transfer in violation of the terms of this Agreement and the By-laws of the Company shall be deemed null and void and the Company shall refuse to document or recognize such transfer in the corporate books of the Company.
(b) Right of First Refusal. In the event a Shareholder wishes to sell, dispose of, transfer or assign its Common Shares in the Company, the other Shareholder(s) shall have the irrevocable right of first refusal (“Right of First Refusal”), pursuant to the following terms and conditions:
(i) Notice of Offer. In the event a Shareholder, directly or indirectly, at any time, wishes or has the intention to Transfer any of its Common Shares to a third party such Shareholder must deliver written notice of such intention to the other Shareholder(s) and to the Chairman of the Board of Directors (the “Notice of Offer”), indicating (i) the number of Common Shares owned by the Shareholder that are subject to such Transfer (the “Offered Shares”), (ii) the purchase price (the “Minimum Price”) for such Offered Shares, and (iii) all other material terms and conditions of the proposed Transfer, including payment terms and the identity of the potential third party purchaser (the “Third Party Purchaser”) with sufficient detail.
(ii) ROFR Exercise Period. The non-transferring Shareholder(s), within thirty (30) calendar days after the receipt of the Notice of Offer (the “ROFR Exercise Period”), may choose to either (i) purchase the Offered Shares or (ii) not respond to the Notice of Offer. In the event a non-transferring Shareholder wishes to purchase the Offered Shares, it must exercise its Right of First Refusal by written notice (“Notice of Exercise”) given to the transferring Shareholder of its intent to purchase all, and not less than all, of the Offered Shares on the terms contained in the Notice of Offer, at the proposed Minimum Price. In the event that several non-transferring Shareholders deliver a Notice of Exercise regarding their intent to purchase the Offered Shares, the same shall be Transferred by the transferring Shareholder on a pro rata basis to the non-transferring Shareholders, pursuant to the number of shares they own in capital stock of the Company.
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(iii) Transfer and ROFR Deposit. The Notice of Exercise shall be accompanied by a non-reimbursable deposit of no less than twenty percent (20%) of the Minimum Price set forth in the Notice of Offer (the “ROFR Deposit”).
(iv) The Transfer of the Offered Shares shall be made in favor of the non-transferring Shareholder(s) who delivered a Notice of Exercise, on the same basis set forth in the Notice of Offer, within sixty (60) calendar days after the receipt of the Notice of Exercise. The remaining portion of the Minimum Price must be paid by the non-transferring Shareholder in immediately available funds at closing of the Transfer.
(v) If upon delivery of the Notice of Exercise the ROFR Deposit is not made, the Notice of Exercise shall be considered as not delivered and the transferring Shareholder shall have the right to Transfer the Offered Shares to the Third Party Purchaser under the same material terms, including price, outlined to the Shareholders in the Notice of Offer. Notwithstanding the foregoing, the transferring Shareholder has the right to impose a penalty, in the amount of the respective ROFR Deposit, on the non-transferring Shareholder(s) if the non-transferring Shareholder(s) made the ROFR Deposit but later fail(s) to consummate the purchase of the Offered Shares pursuant to the terms of this Agreement for reasons attributed to the non-transferring Shareholder(s). In this event,, the non-transferring Shareholder(s) shall forfeit the applicable ROFR Deposit.
For purposes of the Transfer of Common Shares between Shareholders, the only required representations and warranties shall be those related to ownership of the Offered Shares and nonexistence of Liens thereupon.
(vi) Termination of ROFR Exercise Period. If upon termination of the ROFR Exercise Period, a non-transferring Shareholder: (i) fails to timely deliver a Notice of Exercise regarding all of the Offered Shares in accordance with Section 5.2(b), or (ii) having delivered the Notice of Exercise, does not purchase the Offered Shares pursuant to the terms set forth above, the transferring Shareholder shall be entitled to enter into a stock purchase agreement (the “Third Party Sale Agreement”) with the Third Party Purchaser pursuant to which the transferring Shareholder agrees to sell the Offered Shares to such Third Party Purchaser under the same terms as those described in the Notice of Offer.
The closing of the sale of all of the Offered Shares under this Article Five will occur no later than ninety (90) calendar days after the day all Shareholders received the Notice of Offer. If the sale is not made within said ninety (90) calendar day term, the sale process set forth herein must once again be initiated. In the event the Transfer of the Offered Shares requires third party or Governmental Authority authorization, said ninety (90) calendar day term shall be extended as required by said third party or Governmental Authority to accept or reject the sale.
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(vii) Adhesion. In the event the Third Party Purchaser acquires all the Offered Shares owned by a Shareholder in the capital stock of the Company, in order for said Transfer to be effective, simultaneously to the date on which the Transfer shall become effective, the Third Party Purchaser must agree in writing to be bound by the terms and conditions set forth in this Agreement and the By-laws, on the same terms, mutatis mutandis, as the transferring Shareholder was bound thereunder.
Any Transfer that occurs with respect to the Company without compliance with the terms set forth in this Section 5.2 shall be null and void, and shall not be effective against the Company or the Shareholders of the Company and the Company shall not record such transfer in the corporate books of the Company. In such event, the Third Party Purchaser may not exercise any rights pertaining to the Offered Shares.
(viii) Void Assignments. Shareholders agree that any Transfer of Common Shares of the Company executed, directly or indirectly, through any means, including transfer of Common Shares, partnership interests or similar equities in other companies or rights regarding such equities, shall be void, and shall not be effective against the Company or the Shareholders, and such Transfer shall not be enforceable unless such Transfer of Common Shares complies with the provisions set forth in this Article Five.
Article VI
COMPANy SUBSIDIARIES
Section 6.1 Company Subsidiaries. With respect to any subsidiaries incorporated by the Company to directly or indirectly carry out their business in the Mexican territory or in MALA or ROW; OBMP and Vitel hereby covenant and agree to operate and manage each such Company´s subsidiary in a manner consistent with the terms hereof. OBMP and Vitel also agree that such subsidiaries shall, to the fullest extent permitted under Applicable Law be governed by the same terms and conditions set forth in the Company’s By-laws, as amended and restated pursuant to Section 7.1 hereof and from time to time.
Article VII
OTHER AGREEMENTS
Section 7.1 Company’s By-laws and Conflict Of Interest.
(a) Company’s By-laws. The Company shall within 5 (five) Business Days as of the date hereof, amend and restated its By-laws to adopt the form of By-laws attached to this Agreement under Exhibit D.
(b) Conflict of Interests. The Shareholders hereby agree that all of its decisions and actions with respect of the Company shall be made primarily for the benefit of the Company, and not for their individual benefit.
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To avoid any conflict of interest, the Shareholders agree:
(1) To notify the Company in writing of any corporate or business ties, employment or other circumstance which could originate a conflict of interest, within MALA;
(2) To reject any payment or consideration from any third party, in any form, that may affect its ability to make independent decisions related to the Company;
(3) Not to make or offer any gifts of any kind to third parties, in exchange for services from the Company, except for customary gifts not exceeding US$100.00 (one hundred and 00/100 Dollars);
(4) Not to perform any activities for personal gain or in favor of third parties which could imply a competing activity within MALA; and
(5) Conduct their business ethically, in compliance with laws and pursuant to the business judgment rule, and in any case in such a way as not to adversely affect the reputation of the Company.
Further, the members of the Board of Directors shall be obliged:
(1) To notify the Company in writing of any affiliate relationship, family ties, friendships, employment or other circumstance which could, originate a conflict of interest within MALA;
(2) To reject any payment or consideration from any third party, in any form, that may affect its ability to make independent decisions related to the Company;
(3) Not to make or offer any gifts of any kind to third parties, in exchange for services from the Company, except for customary gifts not exceeding US$100.00 (one hundred and 00/100 Dollars);
(4) Not to perform any activities for personal gain or in favor of third parties which could imply a competing activity, within MALA; and
(5) Conduct their business ethically, in compliance with laws, and in any case in such a way as not to adversely affect the reputation of the Company.
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Section 7.2 Patents, Sanitary Registrations and Licenses
The parties hereto agree and acknowledge that ownership to any and all proprietary rights, including the intellectual property and the technology (present or to be developed), in connection with the Products and the Pipeline Products should be separated as follows: within the U.S. and ROW the owner shall be OBMP, while in the MALA the owner shall be the Company. Guided by this general intent, the parties hereto agree as to the following:
(a) Patents. OBMP has obtained and/or has applied to obtain Patents in the U.S. and other countries around the world for the Products, as applicable. Thus, the parties hereto agree as to the following:
(1) ROW and U.S. Patents. OBMP shall maintain sole ownership of the Patents, including the Base Patents, Derivative Patents and Other Patents and all existing and future technology in connection with the Products in the U.S. and ROW, where applicable. The maintenance of the Patents in the U.S. and ROW will be the sole responsibility of OBMP, including the annuity payments, if any, and other requirements to keep the Patents in the U.S. and ROW in force. OBMP will provide the Company notice of any new filings or patent application in the U.S. and/or ROW for Derivative Patents and Other Patents no later than 30 days after the filing date of such patent application, so that the Company may decide if such a patent shall be protected as well in the MALA countries, within the deadlines established in the Paris Convention (priority rights). Further, any and all new Patent applications by OBMC filed or applied for under the Patent Cooperation Treaty (PCT) system shall initially designate all MALA countries, to insure that said patent may be protected in said countries. OBMC shall assist and aid the Company, the Company Affiliates and/or the designated patent holder when and where necessary to obtain protection of such patents in MALA and to avoid the loss of any potential Patent rights, as a consequence of allowing the technology to fall into the State of the Art. Any and all new patents in MALA countries will then have to be assigned or transferred to the Company in terms of paragraph 7(a)(2) hereunder to ensure its proprietary rights thereto.
(2) MALA Patents. OBMP acknowledges that the use of any Base Patent by the Company within MALA does not constitute patent infringement. OBMP shall assign all title, right and/or interest to the pending patent in Mexico, listed under number 5 of Exhibit F, as well as of any other granted patent or pending patent not listed in Exhibit F that OBMP may have rights to within the MALA in favor of the Company or any Affiliate legal Person, including a Holding Company, or any other Person in which the Shareholders own a majority portion of the equity, and/or have direct and/or indirect control over the decision making structures of such Person. OBMC shall also assign a limited title, right and/or interest to any Derivative Patents and/or Other Patents that may arise in the future to allow the Company to fully, and without restriction, use the technology disclosed in the Derivative Patents and/or Other Patents and obtain patents on such technology in MALA consistent with the intent set forth in paragraph 7(a)(1) herein above. The maintenance of any such Patent rights within MALA, if any, will be the sole responsibility of the Company and/or the designated patent holder, including the annuity payments and other requirements to keep the patents in force in each territory. OBMP will assist and aid the Company and/or the designated patent holder when and where necessary to avoid the loss of any Patent rights or potential patent rights.
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(3) Patent licenses in ROW and the U.S. OBMP shall comply with all applicable ROW and U.S. laws and regulations in connection with patent licensing and do so at its own discretion. The Parties herein agree that the only limitation to OBMP’s prerogatives to license the Patents in the U.S. and ROW is the prevention of parallel imports in the MALA of Products manufactured for sale within the U.S. and ROW under license granted by OBMP. Thus, any and all licenses granted by OBMP in connection with Patents in the U.S. and in the ROW shall contain specific provisions to prevent and/or stop the sale of the Products into MALA.
(4) Patent licenses MALA. The Company and/or its designated Patent holder shall comply with all applicable laws and regulations of each specific country or territory for patent licensing, including the arm’s length principle, particularly if the license is among related parties as it relates to the MALA Patent Rights. The duration of the patent licenses may never exceed the duration of the patent rights in the specific country. Any and all patent licenses as it relates to the MALA Patent Rights shall contain specific provisions to prevent and/or stop parallel exports of the patented Products outside MALA.
(b) Trademarks. For the purpose of this agreement “Trademarks” shall mean the distinctive signs ONCBIOMUNE, OVCAVAX and PROSCAVAX, as well as any logos, artwork or visual or sound elements associated therewith or use in conjunction thereto; and any other future brand that may be developed or acquired in the future by either OBMP or the Company.
OBMP is currently the title holder of several common law rights to the trademarks and a trademark registration in connection with pharmaceutical products and medicines, in particular pharmaceutical products and medicines for the treatment of cancer, including but not limited to the Products, in class 5, as well as of the service marks in connection with the sale and distribution of pharmaceutical products and medicines, in particular pharmaceutical products and medicines for the treatment of cancer, including but not limited to the Products, in class 35, both in the U.S., or is in the process of obtaining registrations thereof. Further, OBMP may be in the process of obtaining substantial rights to the trademarks in MALA through registration or may own trademark registration in MALA. Thus, the Parties hereto agree as follows:
(1) ROW and U.S. Trademarks.- Any and all trademark rights currently owned by OBMP or obtained in the future by OBMP within ROW and/or the U.S., whether Federal or State, are and shall remain the sole property of OBMP and/or its successors in business.
(2) MALA Trademarks.- Any and all trademark rights currently owned by OBMP or obtained in the future within the territories of MALA shall be the sole property of the Company or any Affiliate legal Person, including a holding company, or any other Person in which the Shareholders own a majority portion of the equity, and/or have direct and/or indirect control over the decision making structures of such Person. Thus, OBMP shall assign all title, rights and/or interest in connection with the existing registrations or pending applications, if any, in MALA in favor of the Company or the designated trademark holder. The prosecutions, maintenance and/or renewal of any existing trademark registrations or pending applications within MALA shall be the sole responsibility of the Company or of the designated trademark holder. Further, the prosecution or procurement of additional registrations for the Trademarks and/or trademarks related thereto within MALA, as required, shall be the sole responsibility of the Company or of the designated trademark holder, acting as applicant thereof. OBMP will assist and aid the Company and/or the designated trademark holder when and where necessary to avoid the loss of any trademark rights and/or for the procurement of new trademark rights.
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(3) Trademark licenses in ROW and the U.S. OBMP shall comply with all applicable U.S. and other ROW laws and regulations in connection with trademark licensing in ROW and the U.S. at its sole discretion. The Parties herein agree that the only limitation to OBMP’s prerogatives to license the trademarks in the U.S. and ROW is the prevention of parallel imports in the MALA of Products manufactured for sale within the U.S. and ROW under license granted by OBMP. Thus, any and all licenses granted by OBMP in connection with trademarks in the U.S. and in the ROW shall contain specific provisions to prevent and/or stop the sale of the Products into MALA.
(4) Trademark licenses in MALA. The Company and/or its designated trademark holder shall comply with all applicable laws and regulations for each specific country or territory in MALA for trademark licensing, including the arm’s length principle, particularly if the license is granted among related parties. The licenses in MALA may include the right to sublicense, as well as the right to enforce and maintain the trademark rights in every individual country within MALA. The licenses for trademarks in MALA shall also include the right to co-brand the Products and services with self-owned and developed trademarks and/or service marks property of the licensee or sublicensee.
(c) Sanitary registration. The Company shall obtain and maintain, if required, any sanitary registrations or permits with any Governmental Authority, required for the development, manufacture and commercialization of the Products in México or in any other country in which the Company shall or is entitled to pursue business. The Company will be the preferred Sanitary Registration holder in each individual country, whenever that is legally possible.
Section 7.3 Board of Directors and Officers of the Company on the Closing Date. The Shareholders agree that as of the Closing Date and until Board members and their corresponding alternates are removed and replaced, and their respective replacements have actually assumed such position, the Board shall be integrated as follows:
| Name | Title | For purposes of Section 3.3. hereof appointed by | ||
| ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Head | Chairman | OBMP | ||
| ▇▇▇▇▇▇ ▇▇▇▇▇ Odabachian | Director and Secretary | Vitel | ||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇ Kucharchuck | Director | OBMP | ||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Volnie | Director | Vitel |
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(b) The Shareholders of the Company agree that as of the Closing Date, ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Head will be elected as Chief Executive Officer of the Company, to serve in accordance with the By-laws of the Company and at the discretion of the Board.
(c) The Shareholders of the Company agree that as of the Closing Date or such date thereafter as determined by the Board of Director, the Board of Directors will designate the Company’s auditors.
(d) The Chairman of the Board shall have an additional casting vote (voto de calidad) in case of a deadlock during a Board of Directors’ Meeting of the Company.
Section 7.4 Dividends. Net profits obtained in each fiscal year may only be distributed to the Shareholders once the audited financial statements reflecting such net profits are approved at the Shareholders’ Meeting and subject to available cash. The distribution of profits shall be made only after the losses from prior fiscal years have been absorbed or the capital stock of the Company is reduced to that effect subject to the dividend policy approved by the Shareholders and in effect.
Section 7.5 Funding. The Shareholders shall equally split all expenses related to: (i) the formation of the Company and any other required corporate amendment required to it, (ii) the planned Phase 2A/2B clinical trial of the product called ProscaVax for prostate cancer (iii) any other expenses related to the registration of trademarks, intellectual property, and patents in connection with the Products in MALA and (iv) other expenses related to corporate and drug development of the Company. Investment milestones shall be defined by the Shareholders.
Article VIII
FINANCIAL INFORMATION AND AUDITS
Section 8.1 Periodic Information. The Chief Financial Officer or Treasurer shall prepare its financial information, including its annual audited and interim unaudited financial statements pursuant to general accepted accounting practices, and shall provide the same to the Shareholders at the corporate domicile within the first fiscal quarter of the following fiscal year.
Section 8.2 Visits and Inspection. The Shareholders shall have access to, at any time as requested, during business hours, upon written notice delivered to the Company, any officer and any documentation of the Company, including documentation on any of its assets.
Section 8.3 Audits. Any of the Shareholders may, at their discretion, perform an audit of the Company, provided that such audit shall not interrupt the ordinary course of business of the Company, and the Company and its officers shall adopt all necessary measures to assist the Shareholders and the individuals appointed by such Shareholders to perform those audits.
Section 8.4 Bank Accounts. The Company shall open and maintain one or more bank accounts for its operations, which shall be opened in the Company’s name and in which all amounts related to the Project shall be deposited (in the same manner in which such amounts were received, i.e. checks and cash, among others). Any transaction that exceeds $10,000.00 (ten thousand Dollars) shall require signatures from both the Chairman of the Board and one other Director.
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Article
IX
MISCELLANEOUS
Section 9.1 Headings. The headings in this Agreement are for convenience of reference only and shall not control or affect the meaning or construction of any provisions hereof.
Section 9.2 Entire Agreement. This Agreement constitutes the entire agreement and understanding of the Parties hereto in respect of the subject matter contained herein, and there are no promises, representations, warranties, covenants, conditions or undertakings with respect to the subject matter hereof, other than those expressly set forth or referred to herein. This Agreement supersedes all prior agreements and understandings between the Parties hereto with respect to the subject matter hereof.
Section 9.3 Confidentiality. The Parties agree to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (i) to its shareholders, directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (ii) to the extent requested by any regulatory authority, (iii) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (iv) to any other Party to this Agreement, or (v) to the extent such Information becomes publicly available other than as a result of a breach of this paragraph. For the purposes of this paragraph, “Information” means all information received from by any Party from the other Parties.
Section 9.4 Further Actions; Cooperation. Each of the Shareholders agrees to use its reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to give effect to the transactions contemplated by this Agreement, including but not limited to the OBMP´s obligations under Section 7 hereof.
Section 9.5 Notices. All notices, requests, consents and other communications hereunder to any Party shall be deemed to be sufficient if contained in a written instrument delivered in person or sent by facsimile, nationally recognized overnight courier or first class registered or certified mail, return receipt requested, postage prepaid, and addressed to such Party at the address set forth below or such other address as may hereafter be designated on the signature pages of this Agreement or in writing by such Party to the other Parties:
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if to the Company:
Oncbiomune México, S.A. de C.V. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Pelvoux 130 Piso ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ C.P. 110000 Telephone: + ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ Email: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
| |
if to the OBMP:
OncBioMune Pharmaceuticals Inc. ▇▇▇▇▇▇▇▇ ▇. Head, PhD. Chief Executive Officer, Chairman ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Phone: ▇-▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇-▇▇▇-▇▇▇-▇▇▇▇ E-mail: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ | |
if to Vitel:
| |
Vitel Laboratorios, S.A. de C.V. ▇▇▇▇▇▇ ▇▇▇▇▇ Odabachian Chief Executive Officer, Chairman Monte Pelvoux 130 Piso ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ C.P. 110000 Telephone: + ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ Email: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
All such notices, requests, consents and other communications shall be deemed to have been given or made if and when received (including by overnight courier) by the Parties at the above addresses or sent by electronic transmission, with confirmation received, to the facsimile numbers specified above (or at such other address or telecopy number for a Party as shall be specified by like notice). Any notice delivered by any Party hereto to any other Party hereto shall also be delivered to each other Party hereto simultaneously with delivery to the first Party receiving such notice.
Section 9.6 Applicable Law. The laws of the State of Nevada shall govern the interpretation, validity and performance of the terms of this Agreement, without regard to conflicts of law doctrines.
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Section 9.7 Severability. The invalidity, illegality or unenforceability of one or more of the provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement, including any such provisions, in any other jurisdiction, it being intended that all rights and obligations of the Parties hereunder shall be enforceable to the fullest extent permitted by law.
Section 9.8 Successors and Assigns. Except as otherwise provided herein, all the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the respective successors and permitted assigns of the Parties hereto. No Shareholder may assign any of its rights hereunder to any Person other than a Permitted Transferee to which Common Shares are transferred by a Shareholder and that has complied in all respects with the requirements of this Agreement. Each such Permitted Transferee of any Shareholder shall be subject to all of the terms of this Agreement, and by taking and holding such shares and executing the adhesion agreement described in Section 5.2.(b)(vii) such Person shall be entitled to receive the benefits of and be conclusively deemed to have agreed to be bound by and to comply with all of the terms and provisions of this Agreement.
Section 9.9 Amendments. This Agreement may not be amended, modified or supplemented unless such amendment, modification or supplement is in writing and signed by each of the Shareholders and the Company.
Section 9.10 Waiver. The failure of a Party hereto at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same. No waiver by a Party of any condition or of any breach of any term, covenant, representation or warranty contained in this Agreement shall be effective unless in writing, signed by the Party against whom the waiver is to be effective, and no waiver in any one or more instances shall be deemed to be a further or continuing waiver of any such condition or breach in other instances or a waiver of any other condition or breach of any other term, covenant, representation or warranty.
Section 9.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same Agreement.
Section 9.12 Injunctive Relief. Each Party hereto acknowledges and agrees that a violation of any of the terms of this Agreement will cause the other Parties irreparable injury for which an adequate remedy at law is not available. Therefore, each Party shall be entitled to an injunction, restraining order, specific performance or other equitable relief from any court of competent jurisdiction, restraining any Party from committing any violations of the provisions of this Agreement.
Section 9.13 SUBMISSION TO JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEVADA AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND THE APPELLATE COURTS THEREOF. EACH PARTY HERETO IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO SUCH PARTY AT THE ADDRESS FOR NOTICES SET FORTH HEREIN. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE COURTS REFERRED TO ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
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Section 9.14 Recapitalizations, Exchanges, Etc. Affecting the Common Shares; New Issuances. The provisions of this Agreement shall apply to the full extent set forth herein with respect to Company Securities and to any and all equity or debt securities of the Company or any successor or assign of the Company (whether by merger, amalgamation, consolidation, sale of assets, or otherwise) which may be issued in respect of, in exchange for or in substitution of, such Company Securities, and shall be appropriately adjusted for any share dividends, splits, reverse splits, combinations, reclassifications, recapitalizations, reorganizations and the like occurring after the date hereof.
Section 9.15 Term. This Agreement will be effective as of the date hereof and, except as otherwise set forth herein, will continue in effect thereafter until terminated upon the mutual consent of all of the Parties hereto.
Section 9.16 By-laws. To the extent this Agreement is in conflict, contravenes or violates any provision of the By-Laws, the Company and the Shareholders shall, to the extent possible, use their reasonable best efforts to cause the By-laws to be amended to reflect the terms of this Agreement.
Section 9.17 Preferential Rights for New Projects. Each Shareholder shall promptly notify the other Shareholder and the Company of any business opportunities in ROW with regard to the Products and/or the Patents, Base Patents and Derivative Patents (the “ROW Opportunity”). In the event that the Company decides not to participate in such new business opportunity but one or more of the Shareholders wish to participate directly, the Shareholder who originally procured the ROW Opportunity (the “Original Shareholder”) shall make its best efforts to offer the remaining Shareholders of the Company the right to participate in the ROW Opportunity on the same terms as the other Shareholder. A Shareholder who is presented with an ROW Opportunity shall have a period of thirty (30) days in which to decide to participate. In the event the parties to the ROW Opportunity are unable to reach an agreement to consummate the transaction contemplated by the ROW Opportunity within thirty (30) days, the Original Shareholder shall be free to pursue the ROW Opportunity without the remaining Shareholders of the Company.
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[Remainder of page left blank intentionally]
[Signature pages follow]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their respective officers thereunto duly as of the date first above written.
| ONCBIOMUNE MÉXICO, S.A. DE C.V. | ||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ Odabachian | |
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇ Odabachian | |
| Title: | Authorized Signatory | |
| ONCBIOMUNE PHARMACEUTICAL INC. | ||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Head | |
| Name: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Head, PhD. | |
| Title: | Authorized Signatory | |
| VITEL LABORATORIOS, S.A. DE C.V. | ||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Head | |
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇ Odabachian | |
| Title: | Authorized Signatory | |
[Shareholders Agreement Signature Page]
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Appendix A
List of the Countries
| 1 | Mexico | |
| 2 | Belize | |
| 3 | Costa Rica | |
| 4 | El Salvador | |
| 5 | Guatemala | |
| 6 | Honduras | |
| 7 | Nicaragua | |
| 8 | Panama | |
| 9 | Antigua y Barbuda | |
| 10 | Bahamas | |
| 11 | Barbados | |
| 12 | Cuba | |
| ▇▇ | ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| 14 | Granada | |
| 15 | Haiti | |
| 16 | Jamaica | |
| 17 | San ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ | |
| 18 | San ▇▇▇▇▇▇▇ | |
| 19 | Santa Lucia | |
| 20 | Trinidad & Tobago | |
| 21 | ▇▇▇▇▇▇▇ | |
| ▇▇ | ▇▇▇▇▇▇▇▇ | |
| 23 | ▇▇▇▇▇▇▇ | |
| ▇▇ | ▇▇▇▇ | |
| 25 | ▇▇▇▇▇▇▇▇▇ | |
| ▇▇ | ▇▇▇▇▇▇ | |
| ▇▇ | ▇▇▇▇▇ | |
| 28 | Ecuador | |
| 29 | Guyana Francesa | |
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| 34 | Venezuela |
| -28- |
Exhibit A
Memorandum of Understanding
Exhibit B
Incorporation deed Oncbiomune México, S.A. de C.V.
Exhibit C
Pipeline Products
| 1. | Ovcavax® Ovarian Cancer |
| 2. | PA-OBC – Breast Cancer |
| 3. | PGT-OBM – Renal Cancer |
| 4. | Any other product under development, developed to be developed by OBMP and/or by Dr. Head in collaboration, under contract or under any other type of business relationship with OBMP or with any OBMP related Person. |
Exhibit D
Products
| 1. | Proscavax® Prostate Cancer; |
| 2. | Pipeline Products; and |
| 3. | OBMP Vaccine Technology, OBMP cancer technologies for the treatment of prostate, ovarian and various other types of cancer and any other technology for medical treatment, drug or medical treatment owned by OBMP or by any OBMP related Person. |
Exhibit E
Form of By-laws
Exhibit F
Patents
| 1. | Vaccination of Cancer Patients Using Tumor-Associated Antigens Mixed with Interleukin-2 And Granulocyte-Macrophage Colony Stimulating Factor. U.S. Patent No. 5,478,556. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. Head. Expired 2/28/14. |
| 2. | Composition and Method for Treating Cancer. (Protein Therapeutic Cancer Vaccine) U.S. Patent Application No. 13/005,993; Continuation Application No. 14/137,060; U.S. Patent No. 8,647,627. ▇▇▇▇▇▇▇▇ ▇. Head and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇. Expires 1/13/31. Patent Ukraine No. A 2013 09855. Patent People’s Republic of China (PRC) No. 201080005114.4. |
| 3. | Immunological Method for Treating Cancer (Protein Therapeutic Cancer Vaccine) U.S. Patent Application No. 14/137,060; U.S. Patent No. 9,211,322. ▇▇▇▇▇▇▇▇ ▇. Head and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇. Expires 1/13/31. |
| 4. | Taxane- and Taxoid-Protein Compositions. U.S. Provisional Patent Application No. 61/301006, U.S. Patent Application No. 13/017,173. U.S. Patent No. 9,333,189 B2. ▇▇▇▇▇▇▇▇ ▇. Head and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇. Expires 1/31/31. |
| 5. | Composition and Method for Treating Cancer, Mexican Patent Application No. MX/a/2013/008188 dated 01/09/2012, Docket No. 24412MX01. |