Dated the day of December 2008 VALlRX PLC. (Vendor) and B10FIELD CORP. (Purchaser)
Dated the
day of December 0000
XXXxXX
XXX.
(Vendor)
and
B10FIELD
CORP.
(Purchaser)
SALE OF
SHARES AGREEMENT
for the
sale and purchase of shares
in
VALIBIO
1
THIS AGREEMENT is made on the
day of December 2008
BETWEEN:
(1)
|
VALlRX
PLC, the sole beneficial and legal owner of the Company whose address is
at 00 Xxxxxxxx Xxxxxx, Xxxxxx, XXXX 0XX XXXXXX XXXXXXX ("Vendor");
and
|
(2)
|
BIOFIELD
CORP., a Delaware corporation having its registered office at 0000 Xxxxxx
Xxxxxx, 0'x Xxxxx, Xxxxxxxxxxxx, XX 00000 the United States of America
("Purchaser").
|
WHEREAS:
(A)
|
VALIBIO
SA ("Company") is a company incorporated and existing under the laws of
Belgium, having its principal place of business at 00 Xxxxxx Xxxxxxx
Xxxxxxxx, 0000 Xxxxxxxxx, Xxxxxxx. As at the date hereof, the Company has
an authorised capital divided into 625 Shares each, of which 625 Shares
have been issued and are fully paid
up.
|
(B)
|
As
at the date hereof, the Vendor is the beneficial owner of 623
Shares.
|
(C)
|
The
Vendor has agreed to sell and the Purchaser has agreed to purchase the
Sale Shares (being all the issued Shares as at the date of this Agreement)
subject to and in accordance with the terms and conditions hereinafter set
out.
|
NOW IT IS HEREBY AGREED as
follows:
1.
|
INTERPRETATION
|
1.01
|
In
this Agreement (including the Recitals) the following words and
expressions shall have the following meanings except where the context
otherwise requires:
|
|
"Business
Day"
|
means
any day (other than a Saturday or Sunday) on which banks are open for
business in Hong Kong throughout its normal opening hours provided that
each business day shall finish (and then the next business day commence)
at 4:00 p.m.;
|
|
“Call
Option"
|
means
the call option granted by the Vendor to the Purchaser in relation to the
Shares of the Company held by the Vendor, the terms of which are set out
in Clause 2.
|
|
"Completion"
|
means
completion of the sale and purchase of the Sale Shares as specified in
Clause 5;
|
|
"Completion
Date"
|
means
both (a) the day being no more than 30 days from the date of this
Agreement when the Purchaser shall have paid Euro 100,000 to the Vendor,
and (b) the day being no more than 60 days from the date of this Agreement
when the Purchaser shall have paid in aggregate Euro 600,000 to the
Vendor, in each case when after the conditions set out in Clause 4.01 are
fulfilled (or such later date as the Vendor and the Purchaser may agree in
writing prior to Completion);
|
2
|
"Consideration"
|
means
the consideration for the transfer of the Sale Shares being the sum
specified in Clauses 3.01;
|
|
"Euros” or
"E"
|
means
the official currency of the European
Union;
|
|
"HK$"
|
means
Hong Kong dollars;
|
|
"Sale
Shares"
|
means
63 Shares representing I0% of the allotted and issued share capital of the
Company as of the date of this Agreement which are beneficially owned by
the Vendor to be bought and sold pursuant to Clause
2;
|
|
"Shares"
|
means
ordinary shares in the capital of the
Company;
|
|
"US$"
|
means
United States dollars;
|
|
"Warranties"
|
means
the representations, warranties and undertakings contained or referred to
in Clause 7.01 and Schedule 2 and "Warranty" means any of the Warranties
where the context permits.
|
1.02
|
References
to ordinances and to statutory provisions shall be construed as references
to those ordinances or statutory provisions as respectively amended or
re-enacted or as their application is modified by other provisions
(whether before or after the date hereof) from time to time and to any
orders, regulations, instruments or subordinate legislation made under the
relevant ordinances or statutory provisions thereof and shall include
references to any repealed ordinance or any provisions of which they are
re-enactments (whether with or without
modification).
|
1.03
|
References
to persons include references to individuals, firms, companies,
corporations and unincorporated bodies of persons and vice
versa.
|
1.04
|
References
to this Agreement are to this agreement for the sale and purchase of
shares in the Company as amended, varied, modified, novated or
supplemented from time to time.
|
1.05
|
References
herein to Clauses, Recitals and Schedules are to clauses and recitals in
and the schedules to this Agreement (unless the context otherwise
requires), references to paragraphs are, unless otherwise stated,
references to paragraphs of the relevant Schedules and references to this
Agreement include the Schedules and the
Appendix.
|
1.06
|
The
headings are inserted for convenience only and shall not affect the
construction of this Agreement.
|
1.07
|
Unless
the context requires otherwise, in this Agreement words importing the
singular include the plural and vice versa and words importing a gender or
the neuter include both genders and the
neuter.
|
1.08
|
The
expressions the "Vendor", the "Purchaser" and the "Company" shall, where
the context permits, include their respective successors, personal
representatives, executors, administrators, estates and permitted
assigns.
|
1.09
|
A
document expressed to be "in approved terms" means a document the terms of
which have been approved by or on behalf of the Vendor and the Purchaser
and a copy of which has been signed for the purpose of identification by
or on behalf of the Vendor and the
Purchaser.
|
3
2
|
SALE AND PURCHASE OF
SALE SHARES AND CALL OPTION
|
2.01
|
Subject
to the terms of this Agreement, the Vendor shall sell as beneficial owner
and the Purchaser shall purchase the Sale Shares free from all options,
liens, charges, claims, agreements, equities and encumbrances and other
third party rights of any nature whatsoever and together with all rights
now or hereafter attaching or accruing thereto including all dividends and
distributions declared, made or paid on or after the Completion
Date.
|
2.02
|
In
consideration of the Purchaser entering into and agreeing to be bound by
this Agreement, the Vendor hereby irrevocably and unconditionally grants
to the Purchaser the Call Option to purchase from the Vendor up to 100
Shares from the Vendor currently representing 16% of the entire issued
Shares of the Company on a fully diluted basis at a price per Share of (a)
E9,600 in the event that the option is exercised on or before the first
anniversary of this Agreement, (b) E10,560 in the event that the option is
exercised on or before the second anniversary of this Agreement, or
EII,616 in the event that the option is exercised on or before the third
anniversary of this Agreement. The number of Shares available under the
option shall be adjusted upwards or downwards as the case may be in the
event that the Shares are consolidated or subdivided prior to the exercise
of the option of the maximum number of Shares available under the
option.
|
2.03
|
The
Call Option may be exercised in whole or in part and more than once by the
Purchaser at any time from the Completion until the date falling 3 years
from the Completion and shall be exercisable by written notice from the
Purchaser to the Vendor specifying the number of Shares to which such
notice relates.
|
2.04
|
Completion
of the sale and purchase of the Shares pursuant to the exercise of the
Call Option shall take place within 3 Business Days of the date of the
written notice under Clause 2.03.
|
2.05
|
On
completion of the sale and purchase of such Shares pursuant to the
exercise of the Call Option under Clause 2.03, the Purchaser shall
purchase, and the Vendor shall sell, the legal and beneficial interest in
such Shares with effect from such date free from all liens, charges,
equities, encumbrances or third party interests together with all rights
then or thereafter attaching thereto including but not limited to all
dividends or distributions which may be paid, declared or made in respect
thereof at any time on or after that
date.
|
3
|
CONSIDERATION
|
3.01
|
The
total consideration payable by the Purchaser to the Vendor for the sale of
the Sale Shares and the granting of (but not the exercise of) the Call
Option shall be 600,000 EURO to be satisfied as to (a) Euro 100,000 within
thirty (30) days of the date of this Agreement and as to (b) Euro 500,000
within sixty (60) days of the date of this Agreement in cash at the times
as specified under Clause 4.01.
|
4
|
CONDITIONS
|
4.01
|
Completion
is conditional upon:
|
|
(a)
|
the
Purchaser and the Vendor shall enter into a Distribution Agreement
("Distribution Agreement") with the Vendor upon the execution of this
Agreement in which the Vendor shall grant the exclusive distributorship
right to the Purchaser of products and technology of the Company,
including but not limited to the technology of HyperGenomics and
Nucleosomics and the HPV diagnostic products, Nucleosomics diagnostic
products and HyperGenomics diagnostic
products;
|
4
|
(b)
|
the
Vendor shall deliver or cause to be delivered to the Purchaser duly
executed transfers of (a) 10 Sale Shares and (b) 53 Sale Shares,
respectively by the registered holders thereof in favour of the Purchaser
or such other person(s) as it may nominate together with the relative
certificates within 7 days of in the case of (a) the payment of Euro
100,000, and in the case of(b) the payment of Euro 500,000;
and
|
|
(c)
|
a
Disclosure Letter in which Vendor shall disclose all the matters of the
Company as required under this Agreement and under Schedule
2.
|
4.02
|
The
parties shall use their respective best endeavours to procure that the
conditions set out in Clause 4.01 are fulfilled by 5:00 p.m. (Hong Kong
time) on or before the date specified in Clause
4.01.
|
5
|
COMPLETION
|
|
5.1
|
Subject
to the terms of this Agreement, Completion of 10 of the Sale Shares shall
take place pursuant to this clause at the offices of the Purchaser on the
Completion Date within 30 days of this Agreement, and Completion of 53 of
the Sale Shares shall take place pursuant to this clause at the offices of
the Purchaser within 60 days of this
Agreement.
|
|
5.2
|
Upon
Completion the Vendor shall:
|
|
(a)
|
deliver
to the Purchaser:
|
|
(i)
|
duly
completed and signed transfers of the numbers of Sale Shares specified in
Clause 4.01(b) by the registered holders thereof in favour of the
Purchaser or as it may direct together with the relative bought/sold share
certificates;
|
|
(ii)
|
certificates
in respect of the numbers of Sale Shares specified in Clause 4.01(b) in
favour of such persons as the Purchaser shall
direct;
|
|
(iii)
|
such
waivers or consents as the Purchaser may require to enable the Purchaser
or its nominee(s) to be registered as the holders of Sale
Shares;
|
|
(iv)
|
written
confirmation that none of the Vendor are aware of any matter or thing
which is in breach of or inconsistent with any of the representations,
warranties and undertakings herein
contained;
|
|
(v)
|
such
other documents as may be required to give to the Purchaser good title to
the Sale Shares and to enable the Purchaser or its nominees to become the
registered holders thereof;
|
|
(vi)
|
such
other papers and documents as the Purchaser may (by notice in writing
given not less than 5 business days prior to Completion) reasonably
require;
|
|
(b)
|
cause
board meetings of the Company to be held (inter alia) at which the
Directors shall:
|
|
(i)
|
approve
the transfers to the Purchaser or its nominee(s) and its registration as
members of the Company in respect of the number of Sale Shares specified
in Clause 4.01 (b) (subject to the production of duly stamped
transfers);
|
5
|
(ii)
|
upon
payment of not less than Euro 600,000 by the Purchaser, appoint such
person as the Purchaser may nominate to be validly appointed as an
additional Director of the Company;
|
|
(c)
|
procure
that immediately following the board meetings referred to in sub-clause
5.2(b) such meetings of the boards of directors of the Subsidiaries as the
Purchaser shall require are convened to deal with such of the matters
referred to in subclause 5.2(b) as the Purchaser shall
require;
|
5.3
|
Upon
Completion the Purchaser shall deliver to the Vendor or its Solicitors a
banker's draft or any other means to be agreed by the Parties for the
Consideration, such draft to be payable to or to the order of the Vendor.
The delivery of such banker's drafts as aforesaid in the aggregate amounts
of Euro 600,000 shall constitute a complete discharge to the Purchaser in
respect of the Consideration to be provided by it under this Agreement and
the Purchaser shall not be concerned further with such Consideration or to
see that any of the Vendor actually received the
same;
|
5.4
|
The
Purchaser agrees hereby to irrevocably undertake upon following Completion
to use its reasonable endeavours to procure discharge of the Vendor
obligations pursuant to any indemnity given by the Vendor as security for
the banking facilities of the
Company.
|
5.5
|
The
Purchaser shall not be obliged to complete the purchase of any of the Sale
Shares unless the purchase of the Sale Shares is completed in accordance
with this Agreement. Without prejudice to any other remedies available to
the Purchaser, if in any respect the provisions of clause 5.2 are not
complied with by the Vendor on the Completion Date the Purchaser
may:
|
|
(a)
|
defer
Completion to a date not more than 28 days after the Completion Date (and
so that the provisions of this Clause 5.6 shall apply to Completion as so
deferred); or
|
|
(b)
|
proceed
to Completion so far as practicable (without prejudice to its rights
hereunder); or
|
|
(c)
|
rescind
this Agreement without prejudice to any other remedy and without incurring
any liability to the Vendor.
|
5.6
|
The
Vendor hereby irrevocably undertakes to the Purchaser to procure at its
own expense the due execution of all such further documents as are
necessary to vest in the Purchaser or the Company all such property and
rights as are intended to be vested in it by or pursuant to this
Agreement.
|
6.
|
DEFAULT
|
6.01
|
Without
prejudice to any other remedies available to the Vendor, if in any respect
the obligations of the Purchaser set out in Clause 4.01 are not complied
with by the Purchaser on the Completion Date, the Vendor
may:
|
|
(a)
|
defer
Completion to a date not more than 28 days after the Completion Date (and
so that the provisions of this Clause 6.01 (a) shall apply to Completion
as so deferred); or
|
|
(b)
|
proceed
to Completion so far as practicable (without prejudice to its rights
hereunder) and to recover such damages and compensation from the Vendor by
reason of any such breach or non-fulfilment (and failure to exercise it
shall not constitute a waiver of any such
rights).
|
6.02
|
Without
prejudice to any other remedies available to the Purchaser, if in any
respect the obligations of the Vendor set out in Clause 4.01 Ca) -!D are
not complied with by the Vendor on the Completion Date, the Purchaser
may:
|
6
|
(a)
|
defer
Completion to a date not more than 28 days after the Completion Date (and
so that the provisions of this Clause 6.02Ca) shall apply to Completion as
so deferred); or
|
|
(b)
|
proceed
to Completion so far as practicable (without prejudice to its rights
hereunder) and to recover such damages and compensation from the Vendor by
reason of any such breach or non-fulfilment (and failure to exercise it
shall not constitute a waiver of any such
rights).
|
7.
|
WARRANTIES
|
7.01
|
The
Vendor hereby represents, warrants and undertakes to the Purchaser (to the
intent that the provisions of this Clause shall continue to have full
force and effect notwithstanding Completion) in the terms set out in this
Clause and Schedule 2, and acknowledges that the Purchaser in entering
into this Agreement is relying on such representations, warranties and
undertakings:
|
|
(a)
|
That
the Vendor is and will, immediately prior to Completion, be the beneficial
owner of the Sale Shares free and clear of any lien, charge or encumbrance
whatsoever and the Company has not exercised any lien over any of its
issued shares and there is outstanding no call on any of the Sale Shares
and all of the Sale Shares are fully paid;
and
|
|
(b)
|
That
as at the date of this Agreement, the Sale Shares constitute 10% of the
allotted and issued Shares.
|
7.02
|
The
Vendor shall not (save only as may be necessary to give effect to this
Agreement) do or allow and shall procure that no act or omission will
occur before Completion which would constitute a material breach of any of
the Warranties if they were given at Completion or which would make any of
the Warranties materially inaccurate or misleading if they were so
given.
|
7.03
|
In
the event of it being found prior to Completion that any of the Warranties
are materially untrue or incorrect, or in the event of any matter or thing
arising or becoming known or being notified to the Purchaser which is
materially inconsistent with any of the Warranties or in the event of the
Vendor becoming unable or failing to do anything in any material respect
required to be done by it at or before Completion, the Purchaser shall not
be bound to complete the purchase of the Sale Shares and the Purchaser may
by written notice rescind this Agreement without liability on its part.
The right conferred upon the Purchaser by this Clause is in addition to
and without prejudice to any other rights of the Purchaser (including any
rights to claim damages or compensation from the Vendor by reason of any
such breach or non-fulfilment) and failure to exercise it shall not
constitute a waiver of any such
rights.
|
7.04
|
The
Vendor hereby undertakes to indemnify and keep indemnified the Purchaser
against any loss or liability suffered by the Purchaser as a result of or
in connection with any breach of any of the Warranties and against any
reasonable costs and expenses incurred in connection therewith provided
that the indemnity contained in this Clause shall be without prejudice to
any other rights and remedies of the Purchaser in relation to any such
breach.
|
7.05
|
The
liability of the Vendor for all claims under the Warranties, or otherwise
under this Agreement when taken together shall not exceed the lower of (a)
E600,000, or (b) the amount of the Consideration paid to the
Vendor.
|
7.06
|
The
Vendor shall not be liable for any claim under the Warranties, or
otherwise under this Agreement unless, when taken together, they exceed
E25,000, in which case the whole amount (and not just the amount by which
the limit in this Clause 7.06 is exceeded) is recoverable by the
Purchaser.
|
7
7.07
|
The
Vendor is not liable for any claim under the Warranties, or otherwise
under this Agreement to the extent that the
claim:
|
|
(a)
|
Relates
to matters disclosed in the Disclosure Letter referred to in Clause
4.01(d);
|
|
(b)
|
Relates
to any matter provided for in the
Accounts;
|
8.
|
ANNOUNCEMENTS
|
8.01
|
Each
of the parties hereto undertakes that prior to Completion and thereafter
it will not (save as otherwise provided in this Agreement or as required
by applicable laws, rules or regulations) make any announcement in
connection with this Agreement unless the other party hereto shall have
given its consent to such announcement which consent may not be
unreasonably withheld or delayed and may be given either generally or in a
specific case or cases and may be subject to
conditions.
|
9.
|
COSTS
|
9.01
|
Each
party to this Agreement shall pay its own costs and disbursements of and
incidental to this Agreement and the sale and purchase hereby agreed to be
made. All stamp duty payable on the transfer of the Sale Shares
contemplated hereunder shall be borne by the parties in equal
proportions.
|
10.
|
NOTICES
|
10.01
|
Each
notice, demand, consent or other communication given or made under this
Agreement shall be in writing and delivered or sent to the relevant party
at its address or fax number set out below (or such other address or fax
number as the addressee has by five days' prior written notice specified
to the other parties):
|
To
the Vendor:
|
ValiRX
PLC
|
|
00
Xxxxxxxx Xxxxxx
|
||
Xxxxxx
XXXX 0XX
|
||
Fax
Number: x00 (0) 000 0000000
|
||
Attention: Chief
Executive
|
||
To
the Purchaser:
|
BIOFIELD
CORP.
|
|
0000
Xxxxxx Xxxxxx, 0x0 Xxxxx
|
||
Xxxxxxxxxxxx,
XX 00000 XXX
|
||
Fax
Number: (000) 000-0000
|
||
Attention: Xxxxx
Xxxxx Hong
|
||
Also
copy to:
|
Fax
Number: (000) 0000 0000
|
|
Attention:
|
Xxxxx
Xxxxx Hong
|
10.02
|
Any
notice, demand, consent or other communication so addressed to the
relevant party shall be deemed to have been delivered (a) if given or made
by letter, when actually delivered to the relevant address; and (b) if
given or made by fax, when despatched with a confirmed transmission
report.
|
10.03
|
All
notices, demands, consents and other communications shall be either in the
English language or accompanied by a certified translation thereof into
the English language.
|
8
11.
|
TIME OF THE
ESSENCE
|
11.01
|
Time
shall be of the essence of this Agreement, both as regards the dates and
periods specifically mentioned and as to any dates and periods which may,
by agreement in writing between or on behalf of the Vendor and the
Purchaser, be substituted for them.
|
12.
|
COUNTERPARTS
|
12.01
|
This
Agreement may be executed in one or more counterparts each of which shall
be binding on each party by whom or on whose behalf it is so executed, but
which together shall constitute a single instrument. For the avoidance of
doubt, this Agreement shall not be binding on any party hereto unless and
until it shall have been executed by or on behalf of all persons expressed
to be the parties hereto.
|
13.
|
ASSIGNMENT
|
13.01
|
This
Agreement shall be binding upon and enure for the benefit of the estates,
personal representatives or successors of the parties but shall not be
assignable.
|
14.
|
WHOLE
AGREEMENT
|
14.01
|
This
Agreement (together with any documents referred to herein) constitutes the
whole agreement between the parties hereto and it is expressly declared
that no variations hereof shall be effective unless made in writing. The
Purchaser hereby acknowledges that it is not entering into this Agreement
in reliance upon any representation other than those incorporated into or
represented by the Warranties.
|
15.
|
AMENDMENT
|
15.01
|
Unless
otherwise specifically provided for in this Agreement, any provision of
this Agreement may be amended, supplemented or waived only if the parties
hereto agree in writing.
|
16.
|
GENERAL
|
16.01
|
The
provisions of this Agreement including the warranties and undertakings
herein contained insofar as the same shall not have been fully performed
at Completion or any other requisite time shall remain in full force and
effect notwithstanding Completion or after such requisite
time.
|
16.02
|
Any
right of rescission conferred upon any party hereby shall be in addition
to and without prejudice to all other rights and remedies available to it
and no exercise or failure to exercise such a right of rescission shall
constitute a waiver by such party of any such other right or
remedy.
|
16.03
|
The
Vendor and the Purchaser shall do and execute or procure to be done and
executed all such further acts, deeds, things and documents as may be
necessary to give effect to the terms of this
Agreement.
|
16.04
|
No
failure or delay by the Vendor or the Purchaser in exercising any right,
power or remedy under this Agreement shall operate as a waiver thereof,
nor shall any single or partial exercise of the same preclude any further
exercise thereof or the exercise of any other right, power or remedy.
Without limiting the foregoing, no waiver by a party of any breach by the
other party of any provisions hereof shall be deemed to be a waiver of any
subsequent breach of that or any other provision hereof. If at any time
any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect, the legality, validity and enforceability of
the remaining provisions of this Agreement shall not be affected or
impaired thereby.
|
9
17.
|
GOVERNING LAW AND
JURISDICTION
|
17.01
|
10
EXECUTION
on page 21. The remainder of this page intentionally left blank
11
SCHEDULE
1
INTELLECTUAL
PROPERTIES
Number
|
Description
|
Particulars
|
|
1.
|
W0200S/019826
|
Patent
Licence
|
Cronos/VaJiBio
|
2.
|
W02002GB03080
|
Patent
Licence
|
ValiRx/VaJiBio
|
12
SCHEDULE
2
REPRESENTATIONS,
WARRANTIES AND UNDERTAKINGS
1.
|
GENERAL
|
In this
Schedule, the expression:
"the
Company” means
ValiBlO SA.
2.
|
DISCLOSURES COMPANY RETURNS
RECORDS AND INFORMATION
SUPPLIED
|
2.1
|
The
particulars of the Company and the Shares contained in this Agreement are
true and accurate in all respects.
|
2.2
|
The
copy of the Constitution of the Company referred to in the Disclosure
Letter is true and complete and has attached thereto a copy of every such
resolution or agreement as is required to be attached and (save as
aforesaid and save as regards resolutions for reorganization of the
Company's capital passed immediately prior to the signing of this
Agreement) neither the Company nor any class of its members has passed any
resolution other than resolutions relating to business at Annual General
Meetings which was not special
business.
|
2.3
|
The
Company has complied with such of the provisions of the relevant laws as
are or have been in force and all returns particulars resolutions and
other documents required under any legislation to be delivered on behalf
of the Company to the Registrar of Companies (or equivalent) or to any
other authority whatsoever have been properly made and
delivered.
|
2.4
|
The
Registers of Members and other statutory books of the Company have been
properly kept and contain a true accurate and complete record of all the
matters which should be dealt with
therein.
|
2.5
|
All
information contained or referred to in the Disclosure Letter is accurate
in all respects and the Vendor is not aware of any other fact or matter
which might reasonably affect the willingness of the Purchaser to purchase
the Shares on the terms (including price) of this
Agreement
|
2.6
|
All
written information and documents concerning the Company supplied to the
Purchaser or its solicitors or accountants by the Company or by the
Vendor[s] are true and accurate in all
respects.
|
3.
|
SHARES
AND SHARE CAPITAL
|
3.1
|
The
Shares to be purchased by the Purchaser comprise the allotted and issued
share capital of the Company as of the date of this Agreement and all of
them are fully paid up.
|
3.2
|
There
is no, nor is there any agreement or arrangement to create any pledge,
lien, charge, encumbrance, rights of pre-emption or other equities or
third party rights of any nature whatsoever on, over or affecting any of
the Shares and there has been no exercise or purported exercise of or
claim in respect thereof by any
person.
|
3.3
|
No
person has the right to call for the issue of any share or loan capital of
the Company under any option or other agreement or under any conversion
rights.
|
3.4
|
The
Company has not repaid or agreed to repay or redeem any shares of any
class of its share capital or otherwise reduced or agreed to reduce its
issued share capital or any class
thereof.
|
13
3.5
|
Save
as provided in this Agreement there are no agreements or arrangements in
force which call for the present or future issue or allotment of, or grant
to any person the right (whether conditional or otherwise) to call for the
issue, allotment or transfer of any share or loan capital (including any
option or right of pre-emption or
conversion).
|
3.6
|
The
Company has never reduced its share capital nor capitalised or agreed to
capitalise in the form of shares or debentures or other securities or in
paying up any amounts unpaid on any shares debentures or other securities
any profits or reserves of any class or description or passed or agreed to
pass any resolution to do so .
|
4.
|
SUBSIDIARIES
|
The
Company does not have and has never had at any time any subsidiaries (as defined
in Section 2 of the Companies Ordinance) other than the Subsidiaries and neither
the Company nor any Subsidiary is or has been a subsidiary of any other company
or the holder or beneficial owner of more than 50% of any class of the share or
other capital of any other company or corporation whether limited or unlimited
and whether incorporated in Belgium or elsewhere.
5.
|
NAME
|
The
Company does not use or otherwise carry on business under any name other than
its corporate name and trade names as disclosed.
6.
|
ACCOUNTS
|
6.1
|
The
Accounts of the Company have been prepared in accordance with the
requirements of all relevant ordinances, regulations and statutes and on a
consistent basis in accordance with generally accepted accounting
principles and practices Belgium.
|
6.2
|
The
Accounts are true and accurate in all respects and show a true and fair
view of the assets, liabilities, capital commitments and the state of
affairs of the Company as at the Accounts Date and the profits of the
Company for the said period.
|
6.3
|
No
change in the policies of accounting have been made in preparing the
accounts of the Company for each of the last 3 financial periods of the
Company ended on the Accounts Date, except as stated in the audited
balance sheets and profit and loss aconites for such
year.
|
6.4
|
The
Accounts:
|
|
(a)
|
are
not qualified in any way by the Company's
Auditors;
|
|
(b)
|
correctly
set forth and do not (on the basis of valuation therein adopted for the
relevant assets) overstate the value of the assets of the Company as at
the Accounts Date;
|
|
(c)
|
correctly
set forth and do not understate either the amount of the liabilities
(including contingent liabilities) of the Company at the Accounts Date or
the losses and tax liabilities (including deferred taxation) of the
Company for the financial period ended on the Accounts
Date;
|
|
(d)
|
do
not overstate the profits of the Company for that financial period;
and
|
14
|
(e)
|
do
not omit any fact or matter which renders or might render the Accounts
untrue inaccurate misleading or incomplete in any
respect.
|
6.5
|
The
results shown by the audited profit and loss accounts of the Company for
each of the financial periods ended on the Accounts Date have not (save as
therein disclosed) been affected by any unusual or non-recurring items or
by any other circumstances rendering the profits or losses for the period
covered therein unusually high or unusually
low.
|
6.6
|
Full
provision or reserve has been made in the Accounts for all liabilities,
capital and other commitments of the Company outstanding at the Accounts
Date whether contingent quantified disputed or not or have otherwise been
fully dealt with in the notes to the
Accounts.
|
6.7
|
The
Accounts reserve or provide in full for all taxation for which the Company
was at the Accounts Date liable and whether or not the Company has or may
have any right of reimbursement against any other person and the Accounts
reserve in full for any contingent or deferred liability to
taxation.
|
6.8
|
The
Accounts contain adequate reserves for depreciation and for bad and
doubtful debts and for any losses which may arise on realisation of stock
and work-in-progress.
|
7.
|
EVENTS
SINCE ACCOUNTS DATE
|
7.1
|
Since
the Accounts Date the Company has carried on its business in the ordinary
and usual course and without entering into any transaction, assuming any
liability or making any payment which is not in the ordinary course of its
business, and without any interruption or alteration in the nature scope
or manner of its business.
|
7.2
|
Since
the Accounts Date there has been no adverse change or deterioration in the
financial position or trading prospects of the
Company.
|
7.3
|
Since
the Accounts Date no distribution of capital or income has been declared
made or paid in respect of any share capital of the Company and (excluding
fluctuations in overdrawn current accounts with bankers) no loan or loan
capital of the Company has been repaid in whole or in part nor has become
liable to be repaid.
|
7.4
|
Since
the Accounts Date:
|
|
(a)
|
the
Company has not assumed or incurred any liabilities (actual or contingent)
or expenditure otherwise than in the ordinary course of carrying-on its
day-to-day business;
|
|
(b)
|
the
Company has not made any payments except payments of a routine
nature;
|
|
(c)
|
the
business of the Company has not been materially and adversely affected by
the loss of any important contract or customer or source of supply or by
any abnormal factor not affecting similar businesses to a like extent and
the Vendor is not aware of any facts which are likely to give rise to any
such effects;
|
|
(d)
|
no
monies owing to the Company have been written off or written down or have
become irrecoverable in whole or in part or are regarded as irrecoverable
nor has there been any agreement for the release of any person under any
liability to the Company; and
|
|
(e)
|
there
has been no depletion in the net assets of the
Company.
|
7.5
|
The
Company has no outstanding capital commitments and is not engaged in any
scheme or project requiring the expenditure of capital and since the
Accounts Date the Company has not entered into any agreement or
transaction for the sale or acquisition of any capital assets or of any
current assets other than in the ordinary course of
business.
|
15
7.6
|
Since
the Accounts Date all transactions between the Company and companies (if
any) under the direct or indirect control of the Vendor or any of them and
not sold hereunder to the Purchaser has been on arms length terms and
there are no debts or obligations howsoever arising owed by such companies
to the Company or by the Company to such companies arising otherwise than
in the normal course of trading on arms length
terms.
|
8.
|
ASSETS
OF THE COMPANY
|
8.1
|
The
assets included in the Accounts or acquired since the Accounts Date (other
than trading stock subsequently disposed of in the ordinary course of
business or trading stock acquired subject to retention or reservation of
title by the supplier or manufacturer thereof as disclosed in the
Disclosure Letter) and all assets employed by or required for the business
of the Company:
|
|
(a)
|
are
solely the property of and legally and beneficially owned by the Company
and are not subject to any hire or hire purchase agreement, conditional
sale, credit sale or similar agreement and are and will be at the date of
completion in reasonable working condition and of merchantable quality. No
such assets are subject to any assignment debenture, mortgage,
encumbrance, charge, pledge, lien or adverse interest or will be on
Completion of any kind; and
|
|
(b)
|
are
in the possession or under the control of the
Company.
|
8.2
|
The
Company shall not before Completion dispose of or purchase any assets
other than stock in the ordinary and normal course of the day-to-day
trading operation and business of the
Company.
|
8.3
|
The
Company's stock-in-trade, stocks of raw materials, packaging materials and
finished goods now held are not excessive and are adequate in relation to
the current trading requirements of the business of the Company and none
of the stock is obsolete, slow moving or inappropriate in relation to the
current business of the Company; all such stock-in-trade is in good
condition and capable of being sold by the Company in the ordinary course
of its business in accordance with its current price lists without rebate
or allowance to a purchaser.
|
8.4
|
The
Company has not purchased any stock, goods or materials from any of its
suppliers on terms that property in it does not pass until full payment is
made or all indebtedness
discharged.
|
8.5
|
No
circumstance has arisen or is likely to arise in relation to any asset
held by the Company under a lease or similar agreement whereby the rental
payable has been or is likely to be
increased.
|
8.6
|
All
vehicles and office equipment owned or used by the Company are in
reasonable repair, condition and working order and have been regularly and
properly maintained.
|
8.7
|
Save
as disclosed in the Disclosure Letter, the Company has not acquired any
assets under a hire, hire purchase or credit sale agreement and in respect
of any such agreement disclosed there has been no default by the Company
in the performance or observance on any of the provisions
thereof.
|
9.
|
DEBTS
|
9.1
|
All
debts owed to the Company will realise their full face value and be good
and collectable in the ordinary course of business and no amount included
in the Balance Sheet owing to the Company at the Accounts Date has been
released for an amount less than the value at which it was included in the
Balance Sheet or has been deferred, subordinated or written off or has
proved to any extent to be irrecoverable or is now regarded as
irrecoverable in whole or in part.
|
16
9.2
|
No
part of the amounts included in the Accounts, or subsequently recorded in
the books of the Company, as owing by any debtors is overdue by more than
I month.
|
9.3
|
The
amounts due from debtors as at Completion (less the amount of any relevant
provision or reserve, determined on the same basis as that applied in the
Accounts and disclosed in the Disclosure letter) will be recoverable in
full in the ordinary course of business any in any event not later than I
month after Completion; and none of those debts is subject to any
counter-claim, or set off, except to the extent of any such provision or
reserve.
|
10.
|
BOOKS
OF ACCOUNT
|
10.1
|
For
a period of3 years prior to Completion proper books and records of the
activities of the Company have been properly written up and accurately
present and reflect in accordance with normal accounting practices
consistently applied and generally accepted business principles and
standards and statutory requirements all transactions entered into and
liabilities incurred by the Company or to which it has become a
party.
|
10.2
|
All
amounts outstanding and appearing in the books of the Company as monies
due to directors or shareholders or companies controlled by them or
associated companies of the Company wholly represent money or monies worth
paid or transferred to the Company or remuneration accrued due and payable
for services actually rendered and no part thereof has been provided
directly or indirectly out of the assets of the
Company.
|
11.
|
LICENCES
AND STATUTORY COMPLIANCES
|
11.1
|
All
necessary licences consents permits and authorities (public and private)
have been obtained by the Company to enable the Company to carryon its
business lawfully and effectively in the places and in the manner in which
such business is now carried on (short particulars of each licence, permit
and consent being set out in the Disclosure letter) and all such licences
consents permits and authorities are valid and subsisting and the Vendors
know of no breach of any of the terms or conditions thereof and of no
reason why any of them should be suspended cancelled or
revoked.
|
11.2
|
The
Company has not done or omitted to do and none of its officers, agents,
employees (during the course of their duty in relation to it) have done or
omitted to do anything in contravention or breach of any statute, order or
regulation or the like (whether in Hong Kong or elsewhere) applicable to
it or its business and giving rise to any fine, penalty, default
proceedings or other liability on its
part.
|
11.3
|
The
Company has conducted and is conducting its business in accordance with
all applicable laws and regulations (whether in Hong Kong or
elsewhere).
|
12.
|
INTELLECTUAL
PROPERTY
|
12.1
|
Particulars
of Intellectual Property used by the Company in connection with its
business (all of which are registered in the name of the Company and none
of which has lapsed) are contained in the Disclosure Letter and in
Schedule I to this Agreement and the Company has not in carrying on its
business in the past and does not own, use or require to use any
Intellectual Property except such as set out
herein.
|
12.2
|
In
relation to such Intellectual Property (if
any):
|
17
|
(a)
|
all
Intellectual Property registered in the name of the Company or used or
required to be used by the Company is beneficially owned by it and is not
subject to any agreements or licences (save as disclosed in the Disclosure
Letter) affecting the same and is valid and
subsisting;
|
|
(b)
|
all
agreements and licences for the use by the Company of Intellectual
Property not registered in its name are valid and subsisting and all
renewal fees in respect thereof due up to Completion have been
paid;
|
12.3
|
The
Company is not a party to any licence agreement or right under or in
respect of any patent trade xxxx registered design copyright know-how
secret process or other protected industrial right or asset of the Company
and the Company has not done anything which constitutes or might
constitute an infringement of any patent trade xxxx registered design
copyright or any other of the above mentioned industrial rights or
assets.
|
13.
|
INSURANCES
|
13.1
|
The
policies of insurance which are maintained by the Company afford the
Company adequate cover against accident, product and public liability and
such other risks as companies carrying on the same type of business as the
Company commonly cover by insurance and all the assets (including
stock-in-trade) of the Company of an insurable nature have at all material
times been and are insured in amounts to the full replacement value
thereof against fire and other normal
risks.
|
13.2
|
A
list of all current insurance policies in respect of which the Company has
an interest are disclosed in the Disclosure Letter and all such policies
are in full force and effect and are not void or voidable; no claim is
outstanding or may be made under any such policies and no event has
occurred or circumstances exist which are likely to give rise to any
claim, nothing has been done or omitted to be done which is likely to
result in an increase in premium; and nothing has been done or omitted to
be done which would make any such policy void or
voidable.
|
14.
|
CONTRACTS
|
14.1
|
Save
as disclosed in the Disclosure Letter the Company has not created any
mortgage, charge or debenture (whether secured or unsecured) or issued any
guarantee or indemnity or granted any security on behalf of any person or
company.
|
14.2
|
There
are no contractual arrangements or obligations binding upon the Company
which will or may be legally terminated or breached as a result of the
execution of this Agreement or
Completion.
|
14.3
|
There
are no agreements or arrangements entered into by the Company otherwise
than by way of bargain at arm's
length.
|
14.4
|
All
contracts are entered into in the normal course of business. There are no
long term or onerous or abnormal contracts or commitments whether oral or
written or which cannot be fulfilled or performed on time or without undue
or unusual expenditure of money or
effort.
|
14.5
|
There
are no contracts or arrangements between the Company and the Vendor other
than contracts in the ordinary course of the Company's day-to-day trading
operations
|
14.6
|
There
has been no material default or material breach in respect of any
contract, commitment, undertaking or arrangement binding upon the Company
and there are no circumstances known to the Vendor which, with the passage
of time or the giving of notice or otherwise, will result in such default
or breach or shall be likely to lead to such a breach or
default.
|
18
14.7
|
Save
as anticipated by this Agreement there are and will at Completion be in
force no powers of attorney given by the
Company.
|
14.8
|
No
loan made by the Company has been in breach of and the Company is not in
default of any obligation arising thereunder or under the provision of any
law.
|
14.9
|
No
person has given any guarantee of or any security for any overdraft loan
or loan facility granted to the
Company.
|
15.
|
LITIGATION
|
15.1
|
The
Company is not engaged either on its own account or vicariously in any
litigation or arbitration or tribunal proceedings and so far as the Vendor
are aware no litigation arbitration or tribunal proceedings are pending or
threatened by or against the
Company.
|
15.2
|
The
Company has not committed any criminal illegal or unlawful act and the
Vendor is not aware that any officer or employee of the Company has
committed any such act.
|
15.3
|
The
Company has not committed any breach of contract or statutory duty or any
other act which could lead to a claim for compensation damages specific
performance or an injunction being made against it or which could entitle
a third party to call in any monies before the normal due date thereof or
to exercise any right of set off or which would otherwise adversely affect
the Company.
|
16.
|
BANK
ACCOUNTS AND CHEQUES
|
16.1
|
The
aggregate amount of uncleared cheques drawn by the Company outstanding at
close of business prior to the date of this Agreement does not amount in
the aggregate to more than
EUROlO,OOO.
|
16.2
|
There
will not at Completion be any credit cards or credit accounts available
for use by any director or employee of the
Company.
|
17.
|
CONFIDENTIALITY
|
17.1
|
The
Company has not disclosed to any other person firm or company any of its
know-how trade secrets confidential information technical processes or its
lists of customers or suppliers.
|
18.
|
EMPLOYEES
AND PENSIONS
|
18.1
|
The
particulars shown in the Schedule of Employees referred to in the
Disclosure Letter show the names and lengths of service of every officer
and names and lengths of continuous employment of every employee of the
Company at the date of this Agreement and the remuneration payable and
other benefits provided or which the Company is legally or morally bound
to provide to each such officer and employee and are true and accurate and
there have been no engagements of new officers or employees ofthe Company
nor any increases in the remuneration and other benefits or changes in the
terms of service of any director, officer or employee of the Company since
the Accounts Date nor have any such engagements increases or changes been
agreed to or promised and there are no employees employed by the Company
other than as shown in the said Schedule of Employees referred to in the
Disclosure Letter
|
19
18.2
|
There
are not in existence any contracts of service with Directors or employees
of the Company which cannot be terminated by three months' notice or less
without giving rise to any claim for damages or compensation (other than
under any relevant Employment
laws).
|
18.3
|
There
are no outstanding payments or benefits (actual or contingent) of any kind
due to any present or former directors or the employees of the Company
including compensation and arrears due, incentives, benefits or bonuses
which remain unpaid and which will not have been settled as at the date of
completion other than remuneration accrued due or for reimbursement of
business expenses.
|
18.4
|
No
former employee of the Company was dismissed by the Company within 3
months prior to the date hereof or has a claim for compensation for
wrongful dismissal or for unfair dismissal or to a redundancy or long
service payment from the Company.
|
18.5
|
No
executive of the Company, who is in receipt of remuneration in excess of
EURO 5,000 per month, and no officer of the Company has given or received
notice terminating his employment, and no such executive or officer will
be entitled to give such notice as a result of this
Agreement.
|
18.6
|
The
Company has no obligation (whether legally or morally binding or
established by custom) to establish a share in any subsidiary or offer or
issue shares in the Company or any other company for or to any person or
to pay any pension or death in service benefit or make any other payment
on or after retirement or leaving service to or in respect of any person
who is now or has been an officer or employee of the Company (except
pursuant to the Company's pension scheme(s) (if any) ("the Scheme")
referred to in the Disclosure Letter) and the Scheme (full particulars of
which have been given to the Purchaser) is being properly operated. The
Scheme was at the Accounts Date and is at the date hereof fully funded and
proper actuarial advice has been taken thereon (a copy of which advice is
attached to the Disclosure Letter) and the contributions of the Company
recommended by the actuaries have been made. In particular the Scheme is
fully funded as to that past service which counts for pension benefit
purposes proper allowance being made for future increases in salary both
due to inflation and merit.
|
18.7
|
There
are no schemes in operation under which any employee of the Company is
entitled to a commission or remuneration, calculated by reference to the
whole or part of the turnover, profits or sales of the
Company.
|
18.8
|
The
Company or their respective employees is not involved in any industrial
dispute and there are no facts known or which on reasonable enquiry be
known to the Company or its directors or to the Vendors which might
suggest that there may be an industrial dispute involving the Company or
that this Agreement may lead to any such industrial dispute in particular
no strike of the employees or a group of employees is currently threatened
or taking place and there is no contract agreement or arrangement between
the Company and any trade union or other body representing employees of
the Company nor is the Company bound by any collective agreement affecting
any terms or conditions of employment of any of its
employees.
|
19.
|
TAXATION
MATTERS
|
19.1
|
The
Company has properly made all returns and provided all other information
required for the purposes of taxation and none of such returns is disputed
by any authority concerned and the Vendors are not aware that any dispute
is likely.
|
19.2
|
All
payments by the Company to any person which ought to have been made under
deduction or withholding of tax have been so made and the Company has
(where required by law to do so) accounted to the relevant authorities for
the tax deducted or withheld.
|
20
19.3
|
The
Company has not made or agreed to make any payment to or provided or
agreed to provide any benefit for any officer or employee of the Company
or any third party which is not allowable as a deduction in calculating
the profits of the Company for taxation
purposes.
|
19.4
|
For
three years prior to the date hereof no change of ownership of the Company
has taken place nor has there been any major change in the nature or
conduct of the Company's trade.
|
19.5
|
The
value attributed to each of the capital assets of the Company in the
Accounts does not exceed the written down value for the purposes of
capital allowances.
|
20.
|
DUTIES
|
All
duties, imposts, or fees payable in respect of any assets (including
stock-in-trade) imported, exported or owned by the Company have been paid in
full.
21.
|
GENERAL
|
21.1
|
No
commissions introductory fees bonuses or other payments or gifts having a
monetary value have been paid or made available to any person firm or
company in relation to any transaction implemented under or contemplated
in this Agreement.
|
21.2
|
The
Warranties would also be true and accurate if a reference to the actual
time of Completion were substituted for any reference to the time or date
of this Agreement.
|
21
EXECUTION
IN
WITNESS WHEREOF this Agreement has been executed on the day and year first above
written.
FOR
AND ON BEHALF OF
BIOFIELD
CORP. SIGNED
by
|
)
)
)
)
)
)
|
|||
By:
|
||||
Date:
|
Its:
|
|||
FOR
AND ON
BEHALF
OF
VALIRXPLC
SIGNED
by
|
)
)
)
)
)
)
|
|||
By:
|
||||
Date:
|
Its:
|
22