Exhibit 10.1
SHARE EXCHANGE AGREEMENT
This Agreement dated for reference the 30th day of July, 2002.
BETWEEN:
The undersigned SHAREHOLDERS of Mymetics S.A., more
particularly described on the signature pages hereto
(collectively, the "SHAREHOLDERS")
AND:
MYMETICS CORP, a corporation organized under the laws of
Delaware in the United States, with an address at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇.
("PARENTCO")
WHEREAS:
A. Each Shareholder owns the Mymetics S.A. Common Shares as set forth
beside his name on the signature pages hereto; and
B. The Shareholders propose to contribute to ParentCo their Mymetics S.A.
Common Shares in consideration for ParentCo Shares, upon the terms and
conditions set forth herein.
NOW THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, including the recitals, and any amendments
hereto, unless the context otherwise requires, the following words and phrases
shall have the following meanings, respectively:
1.1 "AGREEMENT" means this share exchange agreement and any Schedules hereto, as
amended, supplemented or restated from time to time;
1.2 "MYMETICS S.A." means Mymetics S.A., a societe anonyme organized under the
laws of France, with an address at ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇-▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇▇;
1.3 "MYMETICS S.A. COMMON SHARES" means the common shares in the capital of
Mymetics S.A.;
1.4 "LOSSES", in respect of any matter, means all claims, demands, proceedings,
losses, damages, liabilities, deficiencies, costs and expenses (including,
without limitation, all legal and other professional fees and disbursements,
interest, penalties and amounts paid in settlement) arising directly or
indirectly as a consequence of such matter;
1.5 "PARENTCO COMMON SHARES" means the common shares in the capital of ParentCo.
2. EXCHANGE OF SHARES
2.1 Subject to the terms and conditions hereof, each of the Shareholders shall
contribute to ParentCo the Mymetics S.A. Common Shares as set forth beside his
name on the signature pages hereto and ParentCo shall issue to each Shareholder
4,265.77 ParentCo Common Shares for each Mymetics S.A. Share set forth beside
such Shareholder's name on the signature pages hereto.
2.2 Subject to the terms and conditions hereof, the securities to be contributed
or issued hereunder shall be delivered to the respective parties as each in
writing shall direct.
3. REPRESENTATIONS AND WARRANTIES OF PARENTCO
3.1 ParentCo, by its acceptance hereof, represents and warrants to the
Shareholders that the statements contained in Schedule "A" hereto are correct
and complete as of the date of this Agreement and shall be correct and complete
as of the Closing Date (as though made then) and acknowledges and confirms that
the Shareholders are relying upon such representations and warranties in
connection with the transactions contemplated herein.
4. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
4.1 The Shareholders severally represent and warrant to ParentCo that the
statements contained in this Section 4.1 are correct and complete as of the date
of this Agreement and shall be correct and complete as of the Closing Date (as
though made then) and hereby acknowledge and confirm that ParentCo is relying
upon such representations and warranties in connection with the transactions
contemplated herein:
(a) each Shareholder has all necessary power and authority to
execute and deliver this Agreement and to perform its
obligations hereunder;
(b) this Agreement has been duly executed and delivered by and on
behalf of each Shareholder and constitutes legal, valid and
binding obligations of each Shareholder enforceable against
such Shareholder in accordance with its terms;
(c) the Mymetics S.A. Common Shares owned by each Shareholder are
owned by such Shareholder as the sole legal and beneficial
owner of record with good, full and marketable title thereto,
free and clear of any mortgages, liens, charges, restrictions,
security interests, adverse claims, pledges, encumbrances or
demands whatsoever, and are issued and outstanding as fully
paid and non-assessable,
(d) no person, firm or corporation has any agreement or option, or
any right or privilege (whether by law, pre-emptive or
contractual) capable of becoming an agreement or option for
the purchase, acquisition, transfer or contribution from any
Shareholder of any of the Mymetics S.A. Common Shares or any
interest therein or right thereto owned by such Shareholder,
other than pursuant hereto; and
(e) there is no legal or regulatory action or proceeding pending
or threatened by any person to enjoin, restrict or prohibit
the contribution of the Mymetics S.A. Common Shares by each
Shareholder as contemplated herein.
4.2 In addition to the representations and warranties made in Section 4.1
hereof, the Shareholders severally represent and warrant to ParentCo that the
statements contained in Schedule "B" hereto are correct and complete as of the
date of this Agreement and shall be correct and complete as of the Closing Date
(as though made then) and hereby acknowledge and confirm that ParentCo is
relying upon such representations and warranties in connection with the
transactions contemplated herein.
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5. COVENANTS OF THE PARTIES
5.1 The parties hereby covenant that each shall use all commercially reasonable
efforts to take all action and do all things necessary, proper or advisable in
order to consummate and make effective the transactions contemplated by this
Agreement;
6. CLOSING PROCEDURE
6.1 The closing of the transactions contemplated herein shall take place on the
date to be determined in the sole discretion of ParentCo, such date not to be
later than July 31, 2002, at the offices of Mymetics S.A. at ▇▇, ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Saint Genis Laval or at such other time or place as may be
mutually agreed upon. The date of the closing of the transactions contemplated
in this Agreement is referred to herein as the "CLOSING DATE" and the time of
closing on such date is referred to herein as the "TIME OF CLOSING".
6.2 At the Time of Closing on the Closing Date, ParentCo shall:
(a) deliver to each Shareholder 4,265.77 ParentCo Common Shares
issued to such Shareholder for each Mymetics S.A. Common Share
currently held by such Shareholder; and
(b) deliver or cause to be delivered such other documents as are
required or contemplated to be delivered by ParentCo pursuant
to this Agreement.
6.3 At the Time of Closing on the Closing Date, the Shareholders shall:
(a) deliver or cause to be delivered to ParentCo transfer forms
(i.e., ordres de mouvement) representing the Mymetics S.A.
Common Shares owned by each Shareholder duly executed for
contribution to ParentCo;
(b) deliver or cause to be delivered such other documents as are
required or contemplated to be delivered by the Shareholders
pursuant to this Agreement.
7. CONDITIONS OF CLOSING
7.1 The obligation of ParentCo to complete the transactions contemplated herein
shall be subject to the following conditions to be fulfilled and/or performed at
or prior to the Time of Closing on the Closing Date:
(a) the representations and warranties of the Shareholders
contained in this Agreement shall be true and correct in all
material respects at the Time of Closing, with the same force
and effect as if such representations and warranties were made
at and as of such time; and
(b) the Shareholders shall have complied with all covenants and
agreements herein agreed to be performed or caused to be
performed by them.
7.2 In the event that the conditions referred to in Section 7.1 hereof shall not
have been fulfilled at or prior to the Time of Closing to the satisfaction of
ParentCo, acting reasonably, or waived by ParentCo, or in the event that the
Closing Date has not occurred on or prior to July 31, 2002, this Agreement shall
be rescinded and ParentCo shall be released from all obligations hereunder.
7.3 The obligation of the Shareholders to complete the transactions contemplated
herein shall be subject to the following conditions to be fulfilled and/or
performed at or prior to the Time of Closing on the Closing Date:
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(a) the representations and warranties of ParentCo contained in
this Agreement shall be true and correct in all material
respects at the Time of Closing, with the same force and
effect as if such representations and warranties were made at
and as of such time;
(b) ParentCo shall have complied with all covenants and agreements
herein agreed to be performed or caused to be performed by it;
and
7.4 In the event that the conditions referred to in Section 7.3 hereof shall not
have been fulfilled at or prior to the Time of Closing to the satisfaction of
the Shareholders, acting reasonably, or waived by the Shareholders, or in the
event that the Closing Date has not occurred on or prior to July 31, 2002, this
Agreement shall be rescinded and the Shareholders shall be released from all
obligations hereunder.
8. INDEMNIFICATION
8.1 ParentCo agrees to indemnify and save harmless the Shareholders from all
Losses suffered or incurred by the Shareholders as a result of or arising
directly or indirectly out of or in connection with: (i) any breach by ParentCo
of or any inaccuracy of any representation or warranty of ParentCo; or (ii) any
breach or non-performance by ParentCo of any covenant to be performed by it that
is contained in this Agreement or in any agreement, certificate or other
document delivered pursuant hereto.
8.2 Each Shareholder severally agrees to indemnify and save harmless ParentCo
from all Losses suffered or incurred by ParentCo as a result of or arising
directly or indirectly out of or in connection with: (i) any breach by such
Shareholder of or any inaccuracy of any representation or warranty of such
Shareholder; or (ii) any breach or non-performance by such Shareholder of any
covenant to be performed by it, that is contained in this Agreement or in any
agreement, instrument, certificate or other document delivered pursuant hereto.
10. COSTS AND EXPENSES
10.1 All costs and expenses of or incidental to the transactions contemplated
herein are to be assumed and paid by the party incurring such costs and
expenses.
11. NOTICES
11.1 Any notice required or permitted to be given hereunder to ParentCo shall be
given by notice in writing addressed to the President of ParentCo hand delivered
or sent by registered mail to the address mentioned on the first page of this
Agreement, or to any new address previously notified to the party giving the
notice. Any notice required or permitted to be given hereunder to a Shareholder
shall be given by notice in writing addressed to such Shareholder hand delivered
or sent by registered mail to the respective address mentioned on the signature
pages of this Agreement, or to any new address previously notified to the party
giving the notice. Any such notices shall be deemed to have been given and
received at the time of hand delivery or delivery by the relevant postal
service, as the case may be.
12. SECTIONS AND HEADINGS
12.1 The division of this Agreement into Sections and the insertion of headings
are for convenience of reference only and shall not affect the interpretation of
this Agreement. Unless otherwise indicated, any reference in this Agreement to a
Section or a Schedule refers to the specified Section of or Schedule to this
Agreement.
13. NUMBER, GENDER AND PERSONS
13.1 In this Agreement, words importing the singular number only shall include
the plural and vice versa, words importing gender shall include all genders and
words importing persons shall include individuals, corporations, partnerships,
associations, trusts, unincorporated organizations, governmental bodies and
other legal or business entities.
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14. SUCCESSORS AND ASSIGNS
14.1 All the terms and provisions of this Agreement shall be binding upon and
enure to the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns but shall not be assignable prior to
the Time of Closing by a Shareholder without the written consent of ParentCo or
by ParentCo without the written consent of the Shareholders.
15. SURVIVAL
15.1 It is understood and agreed that all warranties, representations,
covenants, indemnities and agreements of the parties herein contained or
contained in any certificates or documents submitted pursuant to or in
connection with the transactions contemplated herein shall survive the
completion of the transactions contemplated herein and the termination of this
Agreement and shall continue in full force and effect for the benefit of the
other parties for a period of two years following the Closing Date.
16. FURTHER ASSURANCES
16.1 Each party to this Agreement covenants and agrees that, from time to time
subsequent to the Closing Date, it will, at the request and expense of the
requesting party, execute and deliver all such documents and do all such other
acts and things as any other party hereto, acting reasonably, may from time to
time request be executed or done in order to better evidence or perfect or
effectuate any provision of this Agreement or of any agreement or other document
executed pursuant to this Agreement or any of the respective obligations
intended to be created hereby or thereby.
17. AMENDMENTS
17.1 This Agreement may be amended or modified by an agreement in writing
executed by the parties hereto. Except as aforesaid, no amendment, waiver or
modification of this Agreement shall be effective.
18. SEVERABILITY
18.1 Should a provision of this Agreement be or become invalid, the validity of
the remaining provisions of this Agreement shall not be affected. The parties
hereto undertake to replace any such invalid provision without delay with a
valid provision which as nearly as possible duplicates the economic intent of
the invalid provision.
19. ENGLISH VERSION
19.1 The parties hereby represent, warrant, acknowledge and agree that: (i) they
have agreed that this Agreement be drawn up in the English language; and (ii)
the English version of this Agreement shall govern for all purposes.
20. GOVERNING LAW
20.1 This Agreement shall be construed and enforced in accordance with, and the
rights and obligations of the parties shall be governed by, the laws of the
State of Delaware in the United States.
21. JURISDICTION
21.1 Each of the parties irrevocably agrees to the exclusive jurisdiction of the
courts in the State of Delaware in the United States.
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22. COUNTERPARTS
22.1 This Agreement may be executed in any number of counterparts, each of which
when delivered, either in original or facsimile form, shall be deemed to be an
original and all of which together shall constitute one and the same document.
IN WITNESS WHEREOF the parties have executed this Agreement in counterparts, one
for each party.
MYMETICS CORPORATION
Per: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Authorized Signatory
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THE FOLLOWING SHAREHOLDERS OF MYMETICS S.A.:
SIGNED, SEALED and DELIVERED by )
▇▇▇▇▇▇▇ ▇▇▇▇▇ )
in the presence of: )
)
)
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Signature ) ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name )
)
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Address ) Address
)
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)
) 10
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Occupation Number of Mymetics S.A. Common Shares Held
SIGNED, SEALED and DELIVERED by )
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ )
in the presence of: )
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)
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Signature ) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
)
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Name )
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Address ) Address
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) 1
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Occupation Number of Mymetics S.A. Common Shares Held
SIGNED, SEALED and DELIVERED by )
▇▇▇▇▇▇ ▇▇▇▇▇ )
in the presence of: )
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)
) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Signature ) ▇▇▇▇▇▇ ▇▇▇▇▇
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Name )
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Address ) Address
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Occupation Number of Mymetics S.A. Common Shares Held
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SIGNED, SEALED and DELIVERED by )
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ )
in the presence of: )
)
)
) /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Signature ) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
)
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Name )
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Address ) Address
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) 2
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Occupation Number of Mymetics S.A. Common Shares Held
SIGNED, SEALED and DELIVERED by )
▇▇▇▇-LOUP ROSSI )
in the presence of: )
)
)
) /s/ ▇▇▇▇-Loup ▇▇▇▇▇
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Signature ) ▇▇▇▇-LOUP ROSSI
)
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Name )
)
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Address ) Address
)
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)
) 2
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Occupation Number of Mymetics S.A. Common Shares Held
SIGNED, SEALED and DELIVERED by )
▇▇▇▇▇▇▇▇ AND ▇▇▇▇-LOUP ▇▇▇▇▇ (JOINTLY) )
in the presence of: )
)
)
) /s/ ▇▇▇▇▇▇▇▇ and ▇▇▇▇-Loup ▇▇▇▇▇ (Jointly)
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Signature ) ▇▇▇▇▇▇▇▇ AND ▇▇▇▇-LOUP ▇▇▇▇▇ (JOINTLY)
)
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Name )
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Address ) Address
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) 1
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Occupation Number of Mymetics S.A. Common Shares Held
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SCHEDULE "A"
REPRESENTATIONS AND WARRANTIES OF PARENTCO
(a) ParentCo has been duly organized and is validly existing and in good
standing under the laws of its jurisdiction of organization. ParentCo
is duly authorized to conduct business and is in good standing under
the laws of each jurisdiction where such qualification is required.
ParentCo has full corporate power and authority to carry on the
businesses in which it is engaged and to own and use the properties
owned and used by it.
(b) ParentCo has all necessary power and authority to execute and deliver
this Agreement and to perform its obligations hereunder. This Agreement
has been duly executed and delivered by and on behalf of ParentCo and
constitutes legal, valid and binding obligations of ParentCo
enforceable against ParentCo in accordance with its terms.
B-3
SCHEDULE "B"
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
(a) There is no action, proceeding or investigation pending or, to the
knowledge of the Shareholders, after due inquiry, threatened, against
or affecting Mymetics S.A., at law or in equity or before or by any
federal, state, local or other governmental department, commission,
board or agency, domestic or foreign, which could in any way materially
adversely affect Mymetics S.A. or the condition (financial or
otherwise) of Mymetics S.A..
(b) there is no person, firm or corporation acting or purporting to act for
Mymetics S.A. entitled to any brokerage or finder's fee in connection
with this Agreement or any of the transactions contemplated hereunder,
other than pursuant to the Bank Agreements.
(c) Each Shareholder acknowledges that the ParentCo Common Shares issued
pursuant hereto have not been registered under the U.S. Securities Act
of 1933, as amended, and may be offered, sold or otherwise transferred
only: (i) to ParentCo; (ii) outside the U.S. in accordance with Rule
904 of Regulation S under the U.S. Securities Act of 1933, as amended;
or (iii) inside the U.S. in accordance with: (A) Rule 144A under the
U.S. Securities Act of 1933, as amended; (B) Rule 144 under the U.S.
Securities Act of 1933, as amended, if applicable; or (C) with the
prior written consent of ParentCo, another exemption from registration
under the U.S. Securities Act of 1933.