EXHIBIT 99.5
ASSIGNMENT AGREEMENT
THIS AGREEMENT made as of the 2nd day of May, 2005
BETWEEN:
NEW GENERATION BIOTECH (EQUITY) FUND INC., a registered labour sponsored
investment fund corporation existing under the laws of the Province of
Ontario
(hereinafter called the "Assignor")
- and -
YM BIOSCIENCES INC., a corporation existing under the laws of the Province
of Nova Scotia
(hereinafter called the "Assignee")
WHEREAS Delex Therapeutics Inc. (the "Corporation") is indebted to the Assignor
as at the date hereof in the aggregate principal amount of $2,806,646.28 (the
"Indebtedness") as evidenced by a promissory note dated May 2, 2005 (the
"Instrument");
AND WHEREAS the Assignor has agreed to assign, transfer and convey the
Indebtedness to the Assignee on the terms and conditions hereinafter set out;
NOW THEREFORE, in consideration of the respective covenants and agreements set
out below and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby covenant and
agree with each other as follows:
1. Assignment. The Assignor hereby assigns, transfers and sets over:
(a) the Indebtedness; and
(b) the Instrument.
2. The Assignor herewith delivers to the Assignee the original Instrument,
properly endorsed for transfer, free and clear of all liens, encumbrances and
adverse claims (the "Assignment"), of any nature whatsoever and the Assignee
hereby accepts such Assignment.
3. Consideration. In consideration for the Assignment, the Assignee agrees to
issue to the Assignor 890,999 common shares in the capital of the Assignee at an
issue price of $3.15 per common share.
4. Representations, Warranties and Covenants of the Assignor. The Assignor
represents, warrants and covenants to the Assignee that:
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(a) the Assignor has not previously assigned, released, postponed,
discharged or encumbered the Indebtedness in whole or in part;
(b) the Assignor has the legal right and authority to convey to the
Assignee all of its right, title and interest in and to the
Indebtedness;
(c) the Assignor holds no security for the payment of the Indebtedness;
(d) the Assignor is resident in, or otherwise subject to the laws of,
the Province of Ontario, and is an "accredited investor" as defined
in Ontario Securities Commission Rule 00-000 Xxxxxx Distributions;
(e) the Assignee is not a U.S. Person nor a person in the United States
and the Assignee is not acquiring such common shares for the account
or benefit of a U.S. Person or a person in the United States. As
used herein, the terms "United States" and "U.S. Person" have the
meanings ascribed to them in Regulation S under the United States
Securities Act of 1933, as amended;
(f) the Assignor has the necessary capacity and authority to execute and
deliver this Agreement and to observe and perform its covenants and
obligations and has taken all necessary corporate action in respect
thereof;
(g) this Agreement has been duly authorized, executed and delivered by,
and constitutes a legal, valid, binding and enforceable obligation
of, the Assignor; the entering into of the Agreement and the
transactions contemplated will not result in the violation of any of
the terms and provisions of any law applicable to, or the constating
documents of the Assignor or of any agreement, written or oral, to
which the Assignor may be a party or by which it is or may be bound;
and
(h) the Assignor covenants and agrees that it will not, at any time
hereafter, accept payment of the Indebtedness or any part thereof,
or do any act by which the Assignee may be prevented or hindered
from obtaining payment of the Indebtedness or enforcing the
Security.
5. Representations and Warranties of the Assignee. The Assignee represents and
warrants to the Assignor that:
(a) the Assignee acknowledges that the Assignor makes no representations
or warranties concerning the Indebtedness and the Assignee accepts
the Indebtedness in its present state without any recourse to the
Assignor or claims for indemnity against the Assignor for any
defect;
(b) the Assignee will execute and deliver all documentation as may be
required by all applicable securities laws to permit the issuance of
the common shares in the capital of the Assignee on the terms herein
set forth;
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(c) the Assignee has the necessary capacity and authority to execute and
deliver this Agreement and to observe and perform its covenants and
obligations and has taken all necessary corporate action in respect
thereof; and
(d) this Agreement has been duly authorized, executed and delivered by,
and constitutes a legal, valid, binding and enforceable obligation
of, the Assignee; the entering into of the Agreement and the
transactions contemplated will not result in the violation of any of
the terms and provisions of constating documents of the Assignee or
of any agreement, written or oral, to which the Assignee may be a
party or by which it is or may be bound.
6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
7. Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter of this Agreement and
supersedes all prior oral or written understandings, agreements or contracts
with respect thereto.
8. Binding Agreement. This Agreement may not be assigned by either party without
the prior written consent of the other party. Subject thereto, this Agreement
shall enure to the benefit of and be binding upon the parties and their
respective heirs, executors, administrators, legal personal representatives,
successors (including any successor by reason of amalgamation or statutory
arrangement of any party) and permitted assigns.
9. Further Assurances. Each party shall do such acts and shall execute such
further documents, conveyances, deeds, assignments, transfers and the like, and
will cause the doing of such acts and will cause the execution of such further
documents as are within its powers and as any other party may, in writing, at
any time and from time to time reasonably request to be done and/or executed, in
order to give full effect to the provisions of this Agreement and the documents
delivered at closing.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date first
above written.
NEW GENERATION BIOTECH (EQUITY) FUND INC.,
by its agent NGB Management Inc.
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Authorized Signatory
YM BIOSCIENCES INC.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Chief Executive Officer
