Exhibit O
MEMORANDUM OF AGREEMENT made as of the 22 day of July, 2004.
BY AND BETWEEN: VGE III PORTFOLIO LTD., a company duly incorporated
according to law having it's registered address at C/X
Xxxxxxx Xxxxx (Cayman) Trust, Limited, X.X. Xxx 000,
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx Town, Grand Cayman,
Cayman Islands, B.W.I.
(hereinafter referred to as the "SELLER")
AND: POWER TECHNOLOGY INVESTMENT CORPORATION, a company duly
incorporated according to law having its principal
office at 000 Xxxxxx Xxxxxxxx, Xxxxxxxx, Xxxxxx, X0X
0X0, Xxxxxx, fax number 000.000.0000;
(hereinafter referred to as the "PURCHASER")
(the Seller and the Purchaser are sometimes hereinafter
collectively referred to as the "PARTIES")
WHEREAS the Seller desires to sell to the Purchaser one hundred twenty two
thousand and five hundred (122,500) common shares in the share capital of
Neurochem Inc. (the "SHARES") and the Purchaser desires to purchase the Shares
for an aggregate purchase price of two million one hundred and ninety eight
thousand eight hundred and seventy five United States dollars (U.S.$2,198,875
less broker's commission) (the "PURCHASE PRICE").
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the mutual
covenants herein set forth, the Parties agree as follows:
1. The preamble hereto shall form part hereof, as if herein set forth at
length.
2. The Seller hereby sells, assigns and transfers unto the Purchaser, hereto
present and accepting, and the Purchaser hereby purchases from the Seller, all
of the Seller's right, title and interest in and to the Shares, the whole in
consideration of the Purchase Price. The Seller acknowledges that the
transaction may be effected on the Purchaser's behalf by Power Tek, LLC, a
wholly-owned subsidiary of the Purchaser.
3. Payment of the Purchase Price shall be against delivery of the Shares, the
transaction to be settled off exchange on or about July 27, 2004 between the
Seller's broker and the broker designated by the Purchaser or Power Tek, LLC.
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4. The Seller hereby expressly represents and warrants to the Purchaser the
following:
i) that the Seller has the full right, capacity and authority to enter
into this Agreement;
ii) that the Seller is the sole legal and beneficial owner of its Shares
and that such Shares are free and clear of all liens, charges,
hypothecs or other encumbrances of any kind, nature or description
whatsoever;
iii) that no person, firm or corporation has any agreement, option or right
capable of becoming an agreement or option for the purchase of any of
its Shares; and
iv) that the Seller is not a resident of, and has no place of business or
other establishment in, Canada, that its address as shown in the
records of Neurochem Inc. is not in Canada and it has not been present
in Canada to execute this Agreement or in respect of any discussions
pertaining to this Agreement or the acquisition of Shares contemplated
hereby.
5. The Purchaser hereby expressly warrants and represents to the Seller the
following:
i) that it has the full right, capacity and authority to enter into this
Agreement;
ii) that it has complied and will comply with all applicable laws and
regulations, including securities laws, in connection with the
transaction contemplated by this Agreement; and
iii) that it has such knowledge, sophistication and experience in business
and financial matters so as to be capable of evaluating the merits and
risks of purchasing the Shares pursuant to the terms described herein,
and has so evaluated the merits and risks of such investment.
6. The representations and warranties of the Parties contained herein shall
survive the execution of this Agreement and shall continue to remain in full
force and effect.
7. The Parties will furthermore sign all documents and do all things necessary
to give effect to the present transaction and as may be required by applicable
law in connection therewith.
8. The Purchaser shall indemnify, defend and hold the Seller and its officers,
directors, agents, partners, members, employees and the legal representatives of
any of them (collectively, "Indemnified Persons") harmless from and against any
liability, claim, cost, loss, judgment, damage or expense (including reasonable
attorneys' fees and expenses) that the Indemnified Persons incur or suffer as a
result of or arising out of Purchaser's breach of any of its representations,
warranties or agreements in this Agreement.
9. This Agreement may be executed in counterpart and by facsimile signature to
be followed by an original by courier.
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10. This Agreement shall be construed and interpreted in accordance with the
laws of the State of New York.
11. This Agreement shall enure to the benefit of and be binding upon the
Parties, their respective successors, administrators, representatives, heirs and
assigns.
IN WITNESS WHEREOF, the Parties have executed the present Agreement.
VGE III PORTFOLIO LTD.
Per: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Chief Financial Officer
POWER TECHNOLOGY INVESTMENT CORPORATION
Per: /s/ Xxxxx Xxxxx
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President
