EXECUTION ORIGINAL
PURCHASE AGREEMENT
for the purchase of Units of
BIOMEDICAL DIAGNOSTICS DIVISION, LLC
between
BIOTHERAPIES INCORPORATED
as Seller
and
GENESIS BIOVENTURES, INC.
as Buyer
November 30, 2001
EXECUTION ORIGINAL
PURCHASE AGREEMENT
This PURCHASE AGREEMENT, dated November 30, 2001 (this "Agreement"), is
entered into by and between Biotherapies Incorporated, a Michigan corporation
("Seller"), and Genesis BioVentures, Inc, a New York corporation ("Buyer").
RECITALS
WHEREAS, Buyer and Seller each hold a portion of the membership
interests in Biomedical Diagnostics Division, LLC, a Michigan limited
liability company (the "LLC"), and collectively Buyer and Seller hold all of
such membership interests, subject to the terms of the Amended and Restated
Limited Liability Company Operating Agreement of Biomedical Diagnostics, LLC,
attached hereto as EXHIBIT A;
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to acquire
from Seller, the membership interest in the LLC owned by Seller (the "LLC
Units") for the consideration and on the terms and subject to the conditions
set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements set forth herein, Seller and Buyer
hereby agree as follows:
ARTICLE I - DEFINITIONS
For purposes of this Agreement, except as otherwise expressly provided
or unless the context clearly requires otherwise, the following terms shall
have the following meanings:
1.1 "ADDITIONAL PURCHASE PRICE" shall have the meaning ascribed to it
in SECTION 2.4.
1.2 "AFFILIATE" of any Person shall mean any other Person that directly
or indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, such first Person.
1.3 "BASE PURCHASE PRICE" shall have the meaning ascribed to it in
SECTION 2.3(b).
1.4 "CLAIM" shall have the meaning ascribed to it in SECTION 7.1(b).
1.5 "CLOSING DATE" is the date hereof.
1.6 "CONFIDENTIAL INFORMATION" shall mean, with respect to a party, all
information of any kind whatsoever (including without limitation, data,
compilations, formulae, models, patent disclosures, procedures, processes,
projections, protocols, results of experimentation and testing,
specifications, strategies and techniques), and all tangible and intangible
embodiments thereof of any kind whatsoever (including without limitation,
apparatus, compositions, documents, drawings, machinery, patent applications,
records and reports), which is disclosed by such party to the other party and
is marked, identified as or otherwise acknowledged to be confidential at the
time of disclosure to the other party. Notwithstanding the foregoing,
Confidential Information of a party shall not include information which the
other party can establish by written documentation (i) to have been publicly
known prior to disclosure of such information by the disclosing party to the
other party, (ii) to have become publicly known, without fault on the part of
the other party, subsequent to disclosure of such information by the
disclosing party to the other party, (iii) to have been received
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EXECUTION ORIGINAL
by the other party at any time from a source, other than the disclosing
party, rightfully having possession of and the right to disclose such
information, (iv) to have been otherwise known by the other party prior to
disclosure of such information by the disclosing party to the other party, or
(v) to have been independently developed by employees or agents of the other
party without the use of such information disclosed by the disclosing party
to the other party.
1.7 "CONSENT" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by, or filing with or
notification to, a person pursuant to any Contract, Law, Order or Permit.
1.8 "CONTRACT" shall mean any written or oral agreement, arrangement,
commitment, contract, indenture, instrument, lease or other obligation of any
kind or character, or other obligation that is binding on any Person or its
capital stock, properties or business.
1.9 "DIRECT CLAIM" shall have the meaning ascribed to it in SECTION
7.1(b).
1.10 "DOWNPAYMENT" shall have the meaning ascribed to it in SECTION 2.2.
1.11 "GOVERNMENTAL ENTITY" shall mean any court, administrative agency
or commission or other governmental authority or instrumentality.
1.12 "INDEMNIFIED PARTY" shall have the meaning ascribed to it in
SECTION 7.1.(c).
1.13 "INDEMNIFYING PARTY" shall have the meaning ascribed to it in
SECTION 7.1.(c).
1.14 "LAW" shall mean any federal, state, local or foreign law, statute,
ordinance, rule, regulation, Order, judgment or decree, administrative or
judicial decision, and any other executive or legislative proclamation.
1.15 "LICENSE" shall mean any license, Permit, certificate of authority
or any other instrument issued by any Governmental Entity relating to LLC's
ability to do business.
1.16 "LIEN" shall mean any conditional sale agreement, default of title,
easement, encroachment, encumbrance, hypothecation, infringement, lien,
mortgage, option, pledge, reservation, restriction, security interest, title
retention or other security arrangement, or any adverse right or interest,
charge, or claim of any nature whatsoever of, on, or with respect to any
property or property interest.
1.17 "LITIGATION" shall mean any suit, action, arbitration, cause of
action, claim, complaint, criminal prosecution, investigation, demand letter,
governmental or other administrative proceeding, whether at law or at equity,
before or by any federal, state or foreign court, tribunal, or agency or
before any arbitrator.
1.18 "LOSS" shall mean any obligation greater than $5,000 owed by the
LLC to any Person.
1.19 "MATERIAL ADVERSE EFFECT" shall mean, with respect to a Person, a
material adverse effect upon the business, operations, properties, assets or
condition (financial or otherwise) of such Person.
1.20 "MATERIAL CONTRACT" shall mean any Contract material to the LLC.
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1.21 "ORDER" shall mean any administrative decision or award, decree,
injunction, judgment, order, quasi-judicial decision or award, ruling, or
writ of any federal, state, local or foreign or other court, arbitrator,
mediator, tribunal, administrative agency or authority.
1.22 "PERMIT" shall mean any federal, state, local or foreign
governmental approval, authorization, certificate, declaration, easement,
filing, franchise, license, notice, permit, variance, clearance, exemption,
closure or right to which any Person is a party or that is or may be binding
upon or inure to the benefit of any Person or its securities, properties or
business.
1.23 "PERSON" shall mean any individual, corporation, partnership,
limited liability company, joint venture, trust, association, organization,
governmental authority or other entity.
1.24 "PURCHASE PRICE" shall mean the Downpayment, PLUS the Base Purchase
Price, PLUS the Additional Purchase Price, as adjusted from time to time in
accordance with ARTICLE VIII hereof.
1.25 "REQUISITE REGULATORY APPROVALS" shall mean notices, Consents,
approvals, filings or registrations, with any Governmental Entity or with any
self-regulatory authority or with any third party, and expirations or
terminations of waiting periods.
1.26 "SHARES" shall have the meaning ascribe to it in SECTION 2.3(b).
1.27 "THIRD PARTY" shall have the meaning ascribed to it in SECTION
8.1(d).
1.28 "THIRD PARTY CLAIM" shall have the meaning ascribed to it in
SECTION 8.1(b).
1.29 "TRANSACTION" shall mean the sale of the LLC Units described in
SECTIONS 2.1 and 2.3.
1.30 "TRANSACTION DOCUMENTS" shall mean this Agreement, the Registration
Rights Agreement attached hereto as EXHIBIT B, the Mammastatin Sublicense
Agreement attached hereto as EXHIBIT C, the P&O Technology License Agreement
attached hereto as EXHIBIT D, the Right of First Notice Agreement attached
hereto as EXHIBIT F, the Supply Agreement attached hereto as EXHIBIT G, and
the Sublease Agreement attached hereto as EXHIBIT H.
ARTICLE II - PURCHASE AND SALE OF LLC UNITS
2.1 PURCHASE AND SALE OF LLC UNITS. Subject to the terms and conditions
of this Agreement, Seller shall sell, transfer, convey, assign and deliver
the LLC Units to Buyer, and Buyer shall purchase, acquire and accept the LLC
Units from Seller on the Closing Date.
2.2 DOWNPAYMENT. Pursuant to the Letter of Intent, dated August 20,
2001, between the Buyer and Seller, Seller has made the following payments to
Buyer:
(a) Four Hundred Fifty Thousand Dollars ($450,000.00) paid upon
signing of such Letter of Intent;
(b) One Hundred Thousand Dollars ($100,000.00) paid in Fifty
Thousand Dollar ($50,000) increments during September 2001 and October 2001
as advance minimum royalty payments under the Mammastatin Sublicense
Agreement;
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(c) One Hundred Fifty Thousand Dollars ($150,000.00) paid in Fifty
Thousand ($50,000) increments during August 2001 (upon execution of the
Letters of Intent), September 2001 and October 2001 as capital contributions
to the LLC.
(d) Six Hundred Thousand (600,000) shares of common stock of Buyer
were transferred to Seller upon execution of the Letter of Intent.
The cash payment under Subsection 2.2(a) and the stock payment
under Subsection 2.2(d) are collectively referred to as the "DOWNPAYMENT."
2.3 BASE PURCHASE PRICE. On the Closing Date, subject to the terms and
conditions of this Agreement and in consideration of the sale, assignment,
transfer and delivery of the LLC Units, Buyer shall transfer to Seller the
following:
(a) One Million Six Hundred Thousand Dollars ($1,600,000) in
immediately available funds, payable by wire transfer to an account
designated in writing at least two business days in advance by Seller (the
"INITIAL CASH PAYMENT"); and
(b) Two Million Three Hundred Eleven Thousand Five Hundred Sixty
(2,311,560) shares of common stock of Buyer (the "SHARES;" together with the
Initial Cash Payment, the "BASE PURCHASE PRICE").
2.4 ADDITIONAL PURCHASE PRICE. In addition to the Base Purchase Price,
Buyer shall pay to Seller (the "ADDITIONAL PURCHASE PRICE"):
(a) One Million Five Hundred Thousand Dollars ($1,500,000) in
immediately available funds on the business day occurring one hundred and
eighty days after the date hereof, payable by wire transfer to an account
designated in writing at least two business days in advance by Seller; and
(b) Two Hundred Twelve Thousand Four Hundred Seventy (212,470)
shares of common stock of Buyer shall be issued to Seller as soon as is
commercially reasonable after the Closing Date.
2.5 DELIVERIES. On the Closing Date, Seller shall execute and send to
Buyer an assignment of the LLC Units and all such other documents as may be
necessary to convey to Buyer the right, title and interest of Seller in and
to the LLC Units, and Buyer shall deliver to Seller the Initial Cash Payment
in the manner set forth in SECTION 2.3(a) and the Shares in the manner set
forth in SECTION 2.3(b).
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EXECUTION ORIGINAL
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer that:
3.1 CORPORATE ORGANIZATION AND QUALIFICATION.
(a) Seller is a corporation duly organized, validly existing and in
good standing under the Laws of the State of Michigan, and is qualified and
in good standing as a foreign corporation in each jurisdiction where the
properties owned, leased or operated, or the business conducted, by it
require such qualification, except where the failure to so qualify or be in
good standing is not reasonably likely to have a Material Adverse Effect.
Seller has all requisite corporate power and authority and all necessary
governmental Consents to own, lease and operate its properties and to carry
on its business as it is now being conducted. Seller has made available to
Buyer complete and correct copies of its Articles of Incorporation and Bylaws
as in effect as of the date hereof.
(b) Seller holds all material Licenses necessary for the conduct of
its businesses.
3.2 TITLE TO LLC UNITS. Upon consummation of the Transaction, Seller
will transfer valid title to the LLC Units free and clear of all Liens.
3.3 AUTHORITY RELATIVE TO THIS AGREEMENT. Seller has the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. This Agreement and the
consummation by Seller of the transactions contemplated hereby have been duly
and validly authorized by its Board of Directors and no other corporate
proceedings on the part of Seller are necessary to authorize this Agreement
or to consummate the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by Seller and, assuming this
Agreement constitutes the valid and binding agreement of Buyer, constitutes
the valid and binding agreement of Seller, enforceable against it in
accordance with its terms, except that the enforcement hereof may be limited
by (a) bankruptcy, insolvency, reorganization, moratorium or other similar
Laws now or hereafter in effect relating to creditors' rights generally and
(b) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
3.4 CONSENTS AND APPROVALS; NO VIOLATIONS.
(a) No Requisite Regulatory Approvals are necessary in connection
with the execution and delivery by Seller of this Agreement and the
consummation by Seller of the transactions contemplated hereby, except for
such notices, Consents, approvals, filings or registrations, the failure of
which to be made or obtained would not reasonably be expected to have a
Material Adverse Effect. As of the date hereof, Seller does not know of any
reason why the Requisite Regulatory Approvals should not be obtained without
the imposition of any condition, requirement or term that would impose a
burden upon Buyer.
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EXECUTION ORIGINAL
(b) Neither the execution and delivery of this Agreement by Seller
nor the consummation by Seller of the transactions contemplated hereby, does
or shall (i) conflict with, result in a violation or breach of, or constitute
a Default (or give rise to any right of termination, cancellation or
acceleration) under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, License, Contract, agreement or other instrument
or obligation to which Seller is a party or by which Seller or any of its
respective properties or assets may be bound; (ii) conflict with, result in a
violation or breach of, or constitute a Default (or give rise to any right of
termination, cancellation or acceleration) under, any of the terms,
conditions or provisions of any License or Permit; or (iii) subject to giving
the notices, making the filings or registrations or obtaining the Consents or
approvals referred to in clauses (i) and (ii) in paragraph (a) above,
conflict with, violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Seller or any of its properties or assets, except,
in the case of clauses (i), (ii) or (iii) of this paragraph (b), for
violations, breaches or Defaults which would not reasonably be expected to
have a Material Adverse Effect.
3.5 TAXES. Seller has filed all tax returns and reports as required by
law. These returns and reports are true and correct in all material respects.
Seller has paid all taxes and other assessments due.
3.6 BROKERS AND FINDERS. Except with regards to a possible commission,
bonus and/or finder's fee which may be payable by Seller to Seller's CFO,
Seller has not employed any investment banker, broker, finder, consultant or
intermediary in connection with the transactions contemplated by this
Agreement which would be entitled to any investment banking, brokerage,
finder's, financial advisory or similar fee or commission in connection with
this Agreement or the transactions contemplated hereby.
3.7 INTER-COMPANY OBLIGATIONS. Other than the $42,183.75 due from the
LLC to Seller under the loan made by Seller to the LLC on July 27, 2001
(Check #4224), the LLC does not have (i) outstanding obligations to Seller or
any Affiliate of Seller, or (ii) any other significant commercial
relationships with Seller or any Affiliate of Seller.
3.8 CERTAIN PROCEEDINGS. There is no pending proceeding that has been
commenced against Seller that challenges, or may have the effect of
preventing, delaying, making illegal, or otherwise interfering with, Buyer's
performance of the Agreement or the consummation by Buyer of the transaction
contemplated hereby or would have a Material Adverse Effect on Seller or the
LLC. To Buyer's knowledge, no such proceeding has been threatened.
3.9 INVESTMENT REPRESENTATIONS. Seller understands that it is aware
that the Shares to be issued to it by Buyer pursuant to this Agreement have
not been registered under the Securities Act of 1933, as amended (the
"Securities Act"), or qualified by permit from the Michigan Corporation
Department. Additionally, Seller warrants and represents to Buyer as follows:
(a) Seller is purchasing the Shares solely for its own account for
investment and not with a view to or for sale or distribution of the Shares
or any portion thereof and not with any present intention of selling,
offering to sell or otherwise disposing of or distributing the Shares or any
portion thereof. Seller also represents that the entire legal and beneficial
interest of the Shares it is purchasing is being purchased for, and shall be
held for the account of, Seller only and neither in whole nor in part for any
other person.
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EXECUTION ORIGINAL
(b) Seller has heretofore discussed Buyer and its plans, operations
and financial condition with its officers and that Seller has heretofore
received all such information as it deems necessary and appropriate to enable
it to evaluate the financial risk inherent in making an investment in the
Shares of Buyer and Seller further represents and warrants that it has
received satisfactory and complete information concerning the business and
financial condition of Buyer in response to all inquiries in respect thereof.
(c) Seller realizes that the purchase of the Shares shall be a
highly speculative investment and that Seller is able, without impairing its
financial condition, to hold the Shares for an indefinite period of time and
to suffer a complete loss on the investment.
(d) Buyer hereby discloses to Seller and Seller hereby acknowledges
that:
(i) the Shares which Seller is acquiring have not been
registered under the Securities Act, and such Shares must be held
indefinitely unless a subsequent transfer of them is subsequently registered
under the Act or an exemption from such registration is available; and
(ii) the share certificate representing the Shares shall be
stamped with the legends restricting transfer specified in this Agreement
between Buyer and Seller.
(e) Seller understands that the Shares are restricted securities
within the meaning of Rule 144 promulgated under the Act; that the exemption
from registration under Rule 144 shall not be available in any event for at
least one year from the date of sale of the Shares to Seller, and even then
shall not be available unless (i) a public trading market then exists for the
Shares of Buyer, (ii) adequate current public information concerning Buyer is
then available to the public, (iii) Seller has been the beneficial owner and
Seller has paid the full purchase price for the Shares it seeks to sell at
least one year prior to the sale, and (iv) other terms and conditions of Rule
144 are complied with; and that any sale of the Shares may be made by it only
in limited amounts in accordance with such terms and conditions, as amended
from time to time.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer represents and warrants to the Seller that:
4.1 CORPORATE ORGANIZATION AND QUALIFICATION.
(a) Buyer is a corporation duly organized, validly existing and in
good standing under the Laws of the State of New York, and is qualified and
in good standing as a foreign corporation in each jurisdiction where the
properties owned, leased or operated, or the business conducted, by it
require such qualification, except where the failure to so qualify or be in
good standing is not reasonably likely to have a Material Adverse Effect.
Buyer has all requisite corporate power and authority and all necessary
governmental Consents to own, lease and operate its properties and to carry
on its business as it is now being conducted. Buyer has made available to
Seller complete and correct copies of its Restated Certificate of
Incorporation and Bylaws as in effect as of the date hereof.
(b) Buyer holds all material Licenses necessary for the conduct of
its businesses.
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EXECUTION ORIGINAL
4.2 CAPITALIZATION. The authorized capital stock of Buyer as of
November 28, 2001 consists of 200,000,000 shares, of which 100,000,000 are
designated Preferred Stock and 100,000,000 are designated Common Stock. The
outstanding capital stock of Buyer as of November 28, 2001 consists of
176,562 shares of Series A Convertible Preferred Stock, 16,865,701 shares of
Common Stock, currently outstanding options to purchase 2,160,000 shares of
Common Stock, and currently outstanding warrants to purchase 940,089 shares
of Common Stock. Except as set forth in this Section 4.2, no shares of
capital stock or other equity or voting securities of Buyer are issued,
reserved for issuance or outstanding. The Shares are duly authorized, validly
issued, fully paid and nonassessable and were not issued in violation of any
preemptive rights. Except as set forth in this Section 4.2, there are not any
securities, options, warrants, calls, rights, commitments, agreements,
arrangements or undertakings of any kind to which Buyer is a party or by
which Buyer is bound obligating it to issue, deliver or sell, or cause to be
issued, delivered or sold, additional shares of capital stock or other equity
or voting securities of Buyer or obligating it to issue, grant, extend or
enter into any such security, option, warrant, call, right, commitment,
agreement, arrangement or undertaking. There are no outstanding rights,
commitments, agreements, arrangements or undertakings of any kind obligating
Buyer to repurchase, redeem or otherwise acquire or dispose of any shares of
capital stock or other securities of Buyer.
4.3 VALID ISSUANCE. Upon consummation of the Transaction, Buyer shall
issue the Shares free and clear of all Liens.
4.4 AUTHORITY RELATIVE TO THIS AGREEMENT. Buyer has the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. This Agreement and the
consummation by Buyer of the transactions contemplated hereby have been duly
and validly authorized by its Board of Directors and no other corporate
proceedings on the part of Buyer are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by Buyer and, assuming this Agreement
constitutes the valid and binding agreement of Seller, constitutes the valid
and binding agreement of Buyer, enforceable against it in accordance with its
terms, except that the enforcement hereof may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or other similar Laws now or hereafter
in effect relating to creditors' rights generally and (b) general principles
of equity (regardless of whether enforceability is considered in a proceeding
at law or in equity).
4.5 CONSENTS AND APPROVALS; NO VIOLATIONS.
(a) No Requisite Regulatory Approvals are necessary in connection
with the execution and delivery by Buyer of this Agreement and the
consummation by Buyer of the transactions contemplated hereby, except for
such notices, Consents, approvals, filings or registrations, the failure of
which to be made or obtained would not reasonably be expected to have a
Material Adverse Effect. As of the date hereof, Buyer does not know of any
reason why the Requisite Regulatory Approvals should not be obtained without
the imposition of any condition, requirement or term that would impose a
burden upon Seller.
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(b) Neither the execution and delivery of this Agreement by Buyer
nor the consummation by Buyer of the transactions contemplated hereby, does
or shall (i) conflict with, result in a violation or breach of, or constitute
a Default (or give rise to any right of termination, cancellation or
acceleration) under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, License, Contract, agreement or other instrument
or obligation to which Buyer is a party or by which Buyer or any of its
respective properties or assets may be bound; (ii) conflict with, result in a
violation or breach of, or constitute a Default (or give rise to any right of
termination, cancellation or acceleration) under, any of the terms,
conditions or provisions of any License or Permit; or (iii) subject to giving
the notices, making the filings or registrations or obtaining the Consents or
approvals referred to in clauses (i) and (ii) in paragraph (a) above,
conflict with, violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Buyer or any of its properties or assets, except, in
the case of clauses (i), (ii) or (iii) of this paragraph (b), for violations,
breaches or Defaults which would not reasonably be expected to have a
Material Adverse Effect.
4.6 TAXES. Buyer has filed all tax returns and reports as required by
law. These returns and reports are true and correct in all material respects.
Buyer has paid all taxes and other assessments due.
4.7 COMPLIANCE WITH LAWS. Buyer is in compliance with all applicable
Laws, Orders, Permits and Licenses except for instances of non-compliance
which are not reasonably likely to have a Material Adverse Effect. Buyer has
not received any written notification or written communication from any
Governmental Entity (a) asserting that it is not in compliance with any of
the Laws, Orders, Licenses or Permits of any Governmental Entity or that any
such entity enforces, except such instances of non-compliance that are not
reasonably likely to have a Material Adverse Effect, or (b) requiring it to
enter into or consent to the issuance of a cease and desist order, formal
agreement, directive or commitment which restricts materially the conduct of
its businesses or assets, liabilities, financial condition, results of
operations, capital, credit or reserve policies, its management, or the
payment of dividends. There are no unresolved notices of deficiency or
non-compliance or charges of violation issued by any governmental entity
brought or, to the knowledge of Buyer, threatened to be issued by any
governmental entity, against Buyer which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect, and there are
no facts or circumstances known to Buyer that would constitute a reasonable
basis on which any such proceedings, notices or actions may be instituted,
issued or brought hereafter.
4.8 BROKERS AND FINDERS. Except for a finder's fee to be paid by Buyer
to ▇. ▇▇▇▇▇▇ Associates, Inc., pursuant to a letter agreement between Buyer
and ▇. ▇▇▇▇▇▇ Associates, Inc. dated April 12, 2001, Buyer has not employed
any investment banker, broker, finder, or intermediary in connection with the
transactions contemplated by this Agreement which would be entitled to any
investment banking, brokerage, finder's, financial advisory or similar fee or
commission in connection with this Agreement or the transactions contemplated
hereby.
4.9 CERTAIN PROCEEDINGS. There is no pending proceeding that has been
commenced against Buyer that challenges, or may have the effect of
preventing, delaying, making illegal, or otherwise interfering with, Buyer's
performance of the Agreement or the consummation by Buyer of the transaction
contemplated hereby. To Buyer's knowledge, no such proceeding has been
threatened.
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ARTICLE V - ADDITIONAL AGREEMENTS
5.1 FURTHER ASSURANCES. On and after the Closing Date, the parties
hereto shall use all reasonable efforts to take or cause to be taken all
appropriate action and do, or cause to be done, all things necessary or
appropriate to consummate and make effective the transactions contemplated
hereby, including the execution of any additional documents, instruments or
conveyances of any kind (not containing additional representations and
warranties) which may be reasonably necessary or appropriate to carry out any
of the provisions hereof, including putting Buyer in full possession and
operating control of the LLC Units and causing Buyer to have full
unencumbered ownership of all LLC Units.
5.2 PUBLICITY. The parties shall consult with each other and shall
mutually agree, in writing, upon any press releases or other announcements
pertaining to the purchase of the LLC Units under this Agreement and shall
not issue any such press releases prior to such consultation and agreement,
except as may be required by applicable Law or by obligations pursuant to any
listing agreement with any national securities exchange, in which case the
party proposing to issue such press release shall use its reasonable efforts
to consult in good faith with the other party before issuing any such press
releases.
5.3 CONFIDENTIALITY.
(a) Each party agrees that, at all times from and after the date
hereof, except as required by Law or by the order of any Governmental Entity,
it shall keep confidential and shall not directly or indirectly disclose,
communicate or divulge to any Person or use for the benefit of any Person,
any Confidential Information and shall use such Confidential Information only
in connection with evaluating and consummating the Transaction pursuant to
this Agreement and the Transaction Documents.
(b) In the event the Transaction does not occur, each party shall
promptly return all such proprietary or non-public information received from
the other party.
5.4 LEGENDS; REGISTRATION RIGHTS.
(a) All certificates representing the Shares subject to the
provisions of this Agreement shall, in addition to any legend required to be
placed thereon by federal or state securities laws, have endorsed thereon the
following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933; THEY HAVE BEEN ACQUIRED BY THE HOLDER FOR
INVESTMENT AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD, TRANSFERRED, OR
OTHERWISE DISPOSED OF EXCEPT AS MAY BE AUTHORIZED UNDER THE SECURITIES ACT OF
1933, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER."
(b) The parties shall execute the Registration Rights Agreement
attached hereto as EXHIBIT B.
5.5 MAMMASTATIN SUBLICENSE. Seller shall sublicense to Buyer certain
mammastatin serum assay technology in accordance with the Mammastatin
Sublicense Agreement attached hereto as EXHIBIT C.
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5.6 PROSTATE & OVARIAN DIAGNOSTIC TECHNOLOGY LICENSE. Seller shall
license to Buyer the prostate and ovarian diagnostic technology referenced in
that certain Investment Agreement between Buyer and Seller dated July 7,
2000, attached hereto as EXHIBIT D, in accordance with the P&O Technology
License Agreement attached hereto as EXHIBIT E.
5.7 RIGHT OF FIRST NOTICE. Buyer shall have the right to be notified of
any new protein sequence and technology developed by Seller applicable to
product development of cancer diagnostic tests before such technology is
disclosed to other Persons pursuant to the Right of First Notice Agreement
attached hereto as EXHIBIT F.
5.8 SUPPLY AGREEMENT. Seller shall supply the LLC with a sufficient
quantity of proteins for use in the commercialization and production of
products developed that incorporate Mammastatin, prostate and ovarian
technologies pursuant to the Supply Agreement attached hereto as EXHIBIT G.
5.9 FACILITIES SUBLEASE AGREEMENT. The LLC currently utilizes space,
staff, supplies and equipment belonging to Seller. Upon completion of the
Transaction, the LLC and Seller shall be wholly separate entities and the LLC
shall fairly compensate Seller for use of any space, staff, supplies or
equipment belonging to Seller. Buyer shall ensure that independent facilities
are established within six (6) months of the Closing Date. Until such
independent facilities are developed, the LLC shall continue to share
production space with Seller, at the discretion of Seller, which discretion
is not to be unduly denied, pursuant to a Sublease Agreement attached hereto
as EXHIBIT H.
5.10 LLC MANAGEMENT COMMITTEE. ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. shall be appointed
to the Management Committee of the LLC and the Scientific Advisory Board of
Buyer during the term of the Mammastatin Sublicense referred to in Section
5.5 above, subject to earlier termination for death, disability or failure to
perform the duties appurtenant thereto. This right is personal to ▇▇. ▇▇▇▇▇
and is therefore, non-transferable.
5.11 COMMITMENT TO FUND THE LLC. Buyer commits to fund the operating
costs of the LLC of at least One Million Dollars ($1,000,000) in support of
product development of the Mammastatin, prostate and ovarian technologies
through the LLC on or before the first anniversary of the Closing Date. Buyer
shall have full and absolute discretion to determine how the funding is
allocated among the technologies and various research projects, including
whether research shall be conducted internally or externally. Buyer shall
provide Seller with a full accounting of such funding when reasonably
requested by Seller. Seller shall have the right during normal business hours
and after at least five (5) days prior notice to investigate such funding, to
review all relevant documents and records of Buyer, and to make copies
thereof.
5.12 BOARD SEAT. During the term of the Mammastatin License referred to
in Section 5.5 above, at each annual meeting of the shareholders of Buyer,
and at any special meeting of such shareholders called during such period for
the purpose of electing directors, if requested by Seller, Buyer shall
include in its slate of nominees for Buyer's Board of Directors a designee of
Seller reasonably acceptable to Buyer, and shall recommend to Buyer's
shareholders the election of such Seller designee. If elected, such Seller
nominee shall be covered by a directors and officers liability insurance
policy no less favorable to such Seller designee as that covering Buyer's
current directors and offices.
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ARTICLE VI - CONDITIONS TO CONSUMMATION OF THE TRANSACTION
6.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS TO COMPLETE THE TRANSACTION.
The respective obligations of each party to complete the Transaction are
subject to the satisfaction at or prior to the Closing Date of the following
conditions:
(a) LITIGATION. There shall be no pending or threatened material
litigation or claims against the LLC which seeks to prevent or overturn the
performance of this Agreement.
(b) GOVERNMENTAL FILINGS AND CONSENTS. All Consents, approval of,
or filings or registrations with a Governmental Entity or with any
self-regulatory authority shall have been obtained and be in effect as of the
Closing Date, in each case without the imposition of any condition,
requirement or term which could reasonably be expected to be materially
burdensome on Buyer or the LLC.
(c) EXECUTION AND DELIVERY OF ANCILLARY AGREEMENTS. Seller and
Buyer shall have executed and delivered, or have caused to be executed and
delivered, each of the agreements set forth in SECTION 5.5 through SECTION
5.9 of this Agreement that it is required to execute and deliver, or cause to
be executed and delivered, at or prior to the Closing Date.
6.2 ADDITIONAL CONDITIONS TO THE OBLIGATION OF BUYER. The obligation of
Buyer to complete the Transaction is subject to the satisfaction at or prior
to the Closing Date of the following conditions, any and all of which may be
waived in whole or in part by Buyer to the extent permitted by applicable law:
(a) REPRESENTATIONS AND WARRANTIES. All representations and
warranties set forth in ARTICLE III hereof shall be true and correct.
(b) PERFORMANCE. Seller shall have performed in all material
respects all of its covenants and agreements under this Agreement theretofore
to be performed.
(c) CONSENT OF THE UNIVERSITY OF MICHIGAN. Seller shall have
obtained the consent of the University of Michigan without the imposition of
any condition, requirement or term which could reasonably be expected to be
materially burdensome on Buyer or the LLC.
(d) CURRENT REPORT ON FORM 8-K. Seller shall cooperate with Buyer
and shall ensure that Buyer has access to all books and records of the LLC
and all audited financial statements of the LLC for the fiscal years ended
December 31, 1999 and 2000, and shall make available to Buyer the LLC's
certifying accountants.
(e) SECRETARY'S CERTIFICATE. Buyer shall have received from Seller
a certificate executed by the Secretary or Assistant Secretary of Seller
attaching (i) a true and complete copy of the Articles of Incorporation of
Seller as filed with the Secretary of State of Michigan, with all amendments
thereto, as in effect on the Closing Date, (ii) true and complete copies of
the Bylaws of Seller, as in effect on the Closing Date, and (iii) resolutions
of the board of directors authorizing the execution and delivery of this
Agreement and the transactions contemplated hereby.
(f) LEGAL OPINION. Buyer shall have received the legal opinion of
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to Seller.
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6.3 ADDITIONAL CONDITIONS TO THE OBLIGATION OF THE SELLER. The
obligation of Seller to complete the Transaction is subject to the
satisfaction at or prior to the Closing Date of the following conditions, any
and all of which may be waived in whole or in part by Seller to the extent
permitted by applicable law:
(a) REPRESENTATIONS AND WARRANTIES. All representations and
warranties set forth in ARTICLE IV of this Agreement shall be true and
correct.
(b) PERFORMANCE. Buyer shall have performed in all material
respects its respective covenants and agreements under this Agreement
theretofore to be performed.
(c) SECRETARY'S CERTIFICATE. Seller shall have received from Buyer
a certificate executed by the Secretary or Assistant Secretary of Buyer
attaching (i) a true and complete copy of the Articles of Incorporation of
Buyer as filed with the Secretary of State of New York, with all amendments
thereto, as in effect on the Closing Date, (ii) true and complete copies of
the Bylaws of Buyer, as in effect on the Closing Date, and (iii) resolutions
of the board of directors authorizing the execution and delivery of this
Agreement and the transactions contemplated hereby and the issuance of the
Shares.
(d) LEGAL OPINION. Seller shall have received the legal opinion of
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇, counsel to Buyer.
ARTICLE VII - INDEMNIFICATION
7.1 INDEMNIFICATION.
(a) BY BUYER. Subject to the other provisions of this Section,
Buyer hereby agrees to defend, indemnify and hold harmless Seller from and
against and in respect of any and all Losses incurred by Seller which may be
imposed on, sustained, incurred or suffered by or assessed against Seller,
directly or indirectly, as a result of or relating to or to the extent
arising out of any breach of the representations or warranties of Buyer
contained in this Agreement, with any such breach determined as if any such
representations or warranties were given as of the Closing Date.
(b) BY SELLER. Subject to the other provisions of this Section,
Seller hereby agrees to defend, indemnify and hold harmless Buyer from and
against and in respect of any and all Losses incurred by Buyer which may be
imposed on, sustained, incurred or suffered by or assessed against Buyer,
directly or indirectly, as a result of or relating to or to the extent
arising out of any breach of the representations or warranties of Seller
contained in this Agreement, with any such breach determined as if any such
representations or warranties were given as of the Closing Date.
(c) NOTICE OF CLAIM. If Buyer or Seller (each, an "INDEMNIFIED
PARTY") become aware of any claim, proceeding or other matter (a "CLAIM")
which may give rise to a Loss, the Indemnified Party shall promptly give
notice thereof to the other party (the "INDEMNIFYING PARTY"). Such notice
shall specify whether the Claim arises as a result of a Claim by a Person
against the Indemnified Party (a "THIRD PARTY CLAIM") or whether the Claim
does not so arise (a "DIRECT CLAIM"), and shall also specify with reasonable
particularity (to the extent that the information is available) the factual
basis for the Claim and the amount of the Claim, if known. If, through the
fault of the Indemnified Party, the Indemnifying Party does not receive
notice of any Claim in time to contest effectively the determination of any
Loss susceptible of being contested, the Indemnifying Party shall be entitled
to set off against the amount claimed by the Indemnified Party the amount of
any Losses
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EXECUTION ORIGINAL
incurred by the Indemnifying Party resulting from the Indemnified Party's
failure to give such notice on a timely basis.
(d) DIRECT CLAIMS. With respect to any Direct Claim, following
receipt of notice from the Indemnified Party of the Claim, the Indemnifying
Party shall have 60 days to make such investigation of the Claim as is
considered necessary or desirable. For the purpose of such investigation, the
Indemnified Party shall make available to the Indemnifying Party the
information relied upon by the Indemnified Party to substantiate the Claim,
together with all such other information as the Indemnifying Party may
reasonably request. If both parties agree at or prior to the expiration of
such 60-day period (or any mutually agreed upon extension thereof) to the
validity and amount of such Claim, the Indemnifying Party shall immediately
pay to the Indemnified Party the full agreed upon amount of the Claim.
(e) THIRD PARTY CLAIMS.
(i) With respect to any Third Party Claims, the Indemnifying
Party shall have the right, at its expense and at its election, to assume
control of the negotiation, settlement and defense of the Claim through
counsel of its choice. In such event, the Indemnifying Party shall reimburse
the Indemnified Party for all the Indemnified Party's reasonable
out-of-pocket expenses as a result of such assumption. The election of the
Indemnifying Party to assume such control shall be made within 60 days of
receipt of notice of the Third Party Claim, failing which the Indemnifying
Party shall be deemed to have elected not to do so. If the Indemnifying Party
elects to assume such control, the Indemnified Party shall have the right to
be informed and consulted with respect to the negotiation, settlement or
defenses of such Third Party Claim and to retain counsel to act on its
behalf, but the fees and disbursements of such counsel shall be paid by the
Indemnified Party unless the Indemnifying Party consents to the retention of
such counsel or unless the named parties to any action or proceeding include
both the Indemnifying Party and the Indemnified Party and a representation of
both the Indemnifying Party and the Indemnified Party by the same counsel
would be inappropriate due to the actual or potential differing interests
between them (such as the availability of different defenses). If the
Indemnifying Party, having elected to assume such control, thereafter fails
to defend the Third Party Claim within a reasonable time, the Indemnified
Party shall be entitled to assume such control, and the Indemnifying Party
shall be bound by the results obtained by the Indemnified Party with respect
to the Third Party Claim. If any Third Party Claim is of a nature such that
the Indemnified party is required by applicable Law to make a payment to any
Person (a "THIRD PARTY") with respect to the Third Party Claim before the
completion of settlement negotiations or related legal proceedings, the
Indemnified Party may make such payment and the Indemnifying Party shall
forthwith, after demand by the Indemnified Party, reimburse the Indemnified
Party for such payment. If the amount of any liability of the Indemnified
Party under the Third Party Claim in respect of which such payment was made,
as finally determined, is less than the amount which was paid by the
Indemnifying Party to the Indemnified Party, the Indemnified Party shall,
promptly after receipt of the difference from the Third Party, pay the amount
of such difference to the Indemnifying Party.
(ii) If the Indemnifying Party fails to assume control of the
defense of any Third Party Claim, the Indemnified Party shall have the
exclusive right to consent, settle or pay the amount claimed. Whether or not
the Indemnifying Party assumes control of the negotiation, settlement or
defenses of any Third Party Claim, the Indemnifying Party shall not settle
any Third Party Claim without the written consent of the Indemnified Party,
which consent shall not be unreasonably withheld or delayed.
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(iii) The Indemnified Party and the Indemnifying Party shall
cooperate fully with each other with respect to Third Party Claims, and,
regardless of which party has control thereof as provided for herein, shall
keep each other fully advised with respect thereto (including supplying
copies of all relevant documentation promptly as it becomes available).
(f) ADJUSTMENT TO PURCHASE PRICE. Any payment by Seller under this
Article VIII shall be deemed an adjustment to the Purchase Price.
ARTICLE VIII - CONFIDENTIALITY
8.1 CONFIDENTIAL INFORMATION. During this Agreement, each party may
have access to information that is considered confidential by the other
("Confidential Information").
8.2 USE. Each party shall use the other party's Confidential
Information only for the purposes of this Agreement. Each party shall
maintain the confidentiality of the other party's Confidential Information in
the same manner in which it protects its own Confidential Information of like
kind, but in no event shall either party take less than reasonable
precautions to prevent the unauthorized disclosure or use of the other
party's Confidential Information.
8.3 DISCLOSURE. Each party is permitted to disclose the other party's
Confidential Information to its employees and contractors on a need to know
basis only, provided that such employees and contractors have written
confidentiality obligations to that party no less stringent than those
contained in this Agreement.
8.4 EXCEPTIONS. The confidentiality provisions of this Agreement do not
apply to information that is or becomes entirely in the public domain through
no fault of the receiving party; was received lawfully from a third party
through no breach of any obligation of confidentiality owed to the disclosing
party; or created by a party independently of its access to or use of the
other party's Confidential Information. In addition, nothing contained in
this Agreement shall be construed to prevent GBI from complying with its
disclosure obligations pursuant to U.S. securities laws.
8.5 TERMINATION AND SURVIVAL. Upon termination or expiration of this
Agreement, each party shall return the other party's Confidential Information
and shall not use the other party's Confidential Information for its own, or
any third party's, benefit. The provisions of this Section shall survive
termination of this Agreement for so long as the Confidential Information
remains confidential.
ARTICLE IX - MISCELLANEOUS
9.1 HEADINGS. The headings of the several sections are inserted for
convenience of reference only and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement.
9.2 INTERPRETATION.
(a) Article, section, paragraph, exhibit and schedule references
are to the articles, sections, paragraphs, exhibits and schedules of this
Agreement unless otherwise specified.
(b) Whenever the words "include," "includes" or "including" are
used in this Agreement they shall be deemed to be followed by the words
"without limitation."
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EXECUTION ORIGINAL
(c) The words "hereof," "hereby," "herein," "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.
(d) The plural of any defined term shall have a meaning correlative
to such defined term and words denoting any gender shall include all genders.
Where a word or phrase is defined herein, each of its other grammatical forms
shall have a corresponding meaning.
(e) A reference to any party to this Agreement or any other
agreement or document shall include such party's permitted successors and
permitted assigns.
(f) A reference to any legislation or to any provision of any
legislation shall include any modification or re-enactment thereof, any
legislative provision substituted therefor and all regulations and statutory
instruments issued thereunder or pursuant thereto.
(g) The parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any
provisions of this Agreement.
9.3 AMENDMENT; WAIVER. This Agreement cannot be amended, changed,
modified or supplemented orally, and no amendment, change, modification or
supplement of this Agreement shall be recognized nor have any effect, unless
the writing in which it is set forth is signed by Buyer and Seller, nor shall
any waiver of any of the provisions of this Agreement be effective unless in
writing and signed by the party to be charged therewith. The failure of
either party to enforce, at any time, or for any period of time, any
provision hereof or the failure of either party to exercise any option herein
shall not be construed as a waiver of such provision or option and shall in
no way affect that party's right to enforce such provision or exercise such
option.
9.4 ENTIRE AGREEMENT. The Transaction Documents constitute the entire
agreement between the parties with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
9.5 ASSIGNMENT. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other party hereto.
9.6 SEVERABILITY. If any provision of this Agreement is held to be
invalid, void or unenforceable for any reason whatsoever, the remaining
provisions not so held shall nevertheless continue in full force and effect,
but shall be construed in a manner so as to effectuate the intent of this
Agreement as a whole, notwithstanding such stricken provision(s). Any
provision or part of a provision of this Agreement held to be invalid, void
or unenforceable shall not effect the legality or validity of the remainder
of this Agreement.
9.7 RELATIONSHIP. Nothing in the Transaction Documents shall, create a
partnership, joint venture or principal-agent relationship, between the
parties hereto. Neither party hereto shall have any right or authority to
create any obligation, warranty, representation or responsibility, express or
implied, on behalf of the other party, nor to bind the other party in any
manner whatsoever, insofar as third parties are concerned.
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9.8 NOTICES. Any notice, request, instruction or other document to be
given hereunder by any party to another party shall be in writing and shall
be deemed given when delivered personally, upon receipt of a transmission
confirmation (with a confirming copy sent by overnight courier) if sent by
facsimile or like transmission, and on the next business day when sent by
Federal Express, United Parcel Service, Express Mail, or other reputable
overnight courier. All notices shall be sent to the following addresses:
If to Seller, to:
Biotherapies Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Chief Executive Officer
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
If to Buyer, to:
BioLabs, Inc.
▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: E. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chairman, President and Chief
Executive Officer
with a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
or to such other persons or addresses as may be designated in writing by the
party to receive such notice. Nothing in this section shall be deemed to
constitute consent to the manner and address for service of process in
connection with any legal proceeding (including litigation arising out of or
in connection with this Agreement), which service shall be effected as
required by applicable Law.
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9.9 PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and their respective successors
and assigns and to the benefit of any person or entity which is indemnified
under this Agreement. Nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
9.10 EXPENSES. Whether or not the Transaction shall be consummated and
except as otherwise provided in this Agreement, each party hereto shall pay
its own expenses incident to preparing for, entering into and carrying out
this Agreement and the consummation of the transactions contemplated hereby,
except that Buyer shall pay the cost of Seller's legal opinion.
9.11 GOVERNING LAW. The Transaction Documents shall be governed by, and
construed in accordance with, the Laws of the State of Michigan, without
giving effect to the principles of conflicts of law thereof.
9.12 FORCE MAJEURE. The parties to the Transaction Documents shall be
excused from any performance required hereunder if such performance is
rendered impossible or unfeasible due to any catastrophe or other major event
beyond their reasonable control, including, without limitation, war, riot,
and insurrection; laws, proclamations, edicts, ordinances or regulations;
strikes, lockouts or other serious labor disputes; and floods, fires,
explosions, or other natural disasters. When such events have abated, the
parties' respective obligations shall resume.
9.13 COUNTERPARTS. For the convenience of the parties hereto, this
Agreement may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such
counterparts together constituting the same agreement.
END OF AGREEMENT - SIGNATURE PAGE APPEARS ON NEXT PAGE.
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SIGNATURE PAGE TO THE PURCHASE AGREEMENT,
DATED NOVEMBER 30, 2001, BETWEEN BIOTHERAPIES INCORPORATED
AND GENESIS BIOVENTURES, INC.
IN WITNESS WHEREOF, the undersigned Buyer and Seller have caused this
Agreement to be duly executed as of the date first written above.
BUYER:
GENESIS BIOVENTURES, INC.
By: _____________________________________
E. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chairman, President and Chief
Executive Officer
SELLER:
BIOTHERAPIES INCORPORATED
By: _____________________________________
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Chief Executive Officer
19
EXHIBIT A
AMENDED AND RESTATED LIMITED LIABILITY COMPANY
OPERATING AGREEMENT OF BIOMEDICAL DIAGNOSTICS, LLC
EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
EXHIBIT C
MAMMASTATIN SUBLICENSE AGREEMENT
EXHIBIT D
INVESTMENT AGREEMENT
EXHIBIT E
P&O TECHNOLOGY LICENSE AGREEMENT
EXHIBIT F
RIGHT OF FIRST NOTICE AGREEMENT
EXHIBIT G
SUPPLY AGREEMENT
EXHIBIT H
SUBLEASE AGREEMENT