Exhibit 10.1
THIS AGREEMENT RELATES TO AN OFFERING OF SECURITIES IN AN OFFSHORE TRANSACTION
TO PERSONS WHO ARE NOT U.S. PERSONS (AS DEFINED HEREIN) PURSUANT TO REGULATION S
("REGULATION S") UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"1933 ACT").
NONE OF THE SECURITIES TO WHICH THIS AGREEMENT RELATES HAVE BEEN REGISTERED
UNDER THE 1933 ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO
REGISTERED, NONE MAY BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED
STATES OR TO U.S. PERSONS (AS DEFINED HEREIN) EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF REGULATION S UNDER THE 1933 ACT, PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
1933 ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS.
FIFTH AMENDMENT AGREEMENT
TO CREDIT FACILITY AGREEMENT
THIS FIFTH AMENDMENT AGREEMENT is dated for reference the 21st day of August
2005,
AMONG:
MFC MERCHANT BANK S.A., a bank organized under the laws of Switzerland
(hereinafter, the "Lender")
AND:
MYMETICS CORPORATION, a corporation organized under the laws of the
State of Delaware (hereinafter, the "BORROWER")
AND:
MFC BANCORP LTD., a corporation continued under the laws of the
Province of British Columbia (hereinafter, the "GUARANTOR")
WHEREAS:
A. The Lender agreed to make the Credit Facility available to the Borrower
pursuant to and in accordance with the terms of an amended and restated credit
facility agreement dated for reference the 28th day of February, 2003 among the
Lender, the Borrower and the Guarantor (the "FEBRUARY 28, 2003 AGREEMENT");
B. The Lender, the Borrower and the Guarantor agreed to amend the February 28,
2003 Agreement pursuant to and in accordance with the terms of an amendment
agreement dated for reference July 9, 2003, to provide for: (i) the extension of
the Maturity Date of the Credit Facility to December 15, 2003; and (ii) an
increase in the principal amount of the Credit Facility; and
C. The Lender, the Borrower and the Guarantor agreed to amend the February 28,
2003 Agreement pursuant to and in accordance with the terms of an amendment
agreement dated for reference July 30, 2003, to provide for: (i) an increase in
the principal amount of the Credit Facility; and (ii) conversion of the Credit
Facility from a term credit facility maturing on December 15, 2003 to a demand
credit facility; and
D. The Lender, the Borrower and the Guarantor agreed to amend the February 28,
2003 Agreement pursuant to and in accordance with the terms of an amendment
agreement dated for reference December 31, 2004, to provide for: (i) an increase
in the principal amount of the Credit Facility; and (ii) conversion of the
Credit Facility from a demand credit facility to a credit facility maturing on
March 31, 2005 regarding Euro 200'000, on June 30, 2005 regarding Euro 300'000,
on September 30, 2005 regarding Euro 400'000 and on December 31, 2005, regarding
the remaining balance; and
E. The Lender, the Borrower and the Guarantor agreed to amend the February 28,
2003 Agreement pursuant to and in accordance with the terms of an amendment
agreement dated for reference February 16th 2005, to provide for: (i) the
extension of the Maturity Date of the Credit Facility; and (ii) the possibility
to convert all or part of the Credit Facility into common shares of the
Borrower, all on the terms and conditions set out therein,
F. The Lender, the Borrower and the Guarantor have agreed to further amend the
February 28, 2003 Agreement to provide for the extension of the maturity date of
the 1st repayment of the Credit Facility to December 31, 2005; all on the terms
and conditions set out herein (the February 28, 2003 Agreement, as amended by
the July 9, 2003, the July 30, 2003, the December 31, 2004 and the February
16th, 2005 amendment agreement and hereby, is referred to as the "CREDIT
AGREEMENT"),
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT, in consideration of the premises
and the covenants contained herein the parties hereto agree as follows:
1. DEFINED TERMS. Terms used as defined terms herein and not otherwise
defined have the meanings given to them in the Credit Agreement.
2. EXTENSION OF MATURITY AND REPAYMENT OF THE CREDIT FACILITY.
Without affecting the validity of Sections 3.1 (a), 3.1 (b) and 3.1 (c)
added to the Credit Agreement with amendment dated for reference
February 16th 2005, which shall remain in full force and effect,
Section 3.1 of the Credit Agreement is deleted in its entirety and
replaced with the following:
"SECTION 3.1. PAYMENTS. 1st repayment shall be on December 31, 2005,
the borrower shall repay Euro 500'000.--. 2nd repayment of Euro 400'000.--shall
be on June 30, 2006. Final repayment of the remaining open balance shall occur
on December 31, 2006 (the "PAYMENT
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DATE"). On the Payment Date, the Borrower shall pay to the Lender all amounts
outstanding under the Credit Facility, including all principal, Interest and
other Obligations accruing due there under."
3. CONTINUED PERFECTION AND FURTHER SECURITY. The Borrower and the Guarantor
covenant and agree to take such actions and execute and deliver to the Lender
such further agreements, conveyances, deeds and other documents and instruments
as the Lender shall reasonably request for the purpose of establishing,
perfecting, preserving and protecting the Security and any additional security
given to the Lender to secure the obligations of the Borrower and the Guarantor
under the Credit Agreement, including, without limitation, the additional
security and amended Security Documents contemplated by Section 4.1 of the
Credit Agreement, in each case forthwith upon request therefor by the Lender and
in form and substance reasonably satisfactory to the Lender.
4. REPRESENTATIONS AND WARRANTIES OF THE LENDER. The Lender represents and
warrants to the Borrower (which representations and warranties shall survive the
closing of the transactions contemplated in this Agreement), with the intent
that the Borrower will rely thereon in entering into this Agreement, that the
Lender:
(a) is not a U.S. Person (as such term is defined in Regulation S of
the 0000 Xxx) and will not be acquiring any common shares of the
Borrower for the account or benefit of, directly or indirectly, any
U.S. Person;
(b) is outside the United States when receiving and executing this
Agreement; and
(c) will be acquiring the common shares of the Borrower for investment
only and not with a view to resale or distribution and, in particular,
the Lender has no intention to distribute either directly or indirectly
any of the common shares of the Borrower in the United States or to
U.S. Persons, except in compliance with the registration provisions of
the 1933 Act or an exemption therefrom.
5. ACKNOWLEDGEMENTS OF THE LENDER. The Lender acknowledges and agrees that:
(a) the common shares of the Borrower have not been registered under
the 1933 Act, or under any state securities or "blue sky' laws of any
state of the United States, and, unless so registered, may not be
offered or sold in the United States or, directly or indirectly, to
U.S. Persons, except in accordance with the provisions of Regulation S,
pursuant to an effective registration statement under the 1933 Act, or
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the 1933 Act and in each case only in
accordance with any applicable securities laws;
(b) offers and sales of any of the common shares of the Borrower, prior
to the expiration of a period of one year after the date of issuance of
such common shares of the Borrower (the "DISTRIBUTION COMPLIANCE
PERIOD'), shall only be made in compliance with the safe harbor
provisions set forth in Regulation S, pursuant to the registration
provisions of the 1933 Act or an exemption therefrom, and that all
offers and sales after the Distribution Compliance Period shall be made
only in compliance with the registration provisions of
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the 1933 Act or an exemption therefrom and in each case only in
accordance with all applicable securities laws;
(c) the Lender shall not to engage in any hedging transactions
involving the common shares of the Borrower, prior to the end of the
Distribution Compliance Period unless such transactions are in
compliance with the provisions of the 1933 Act;
(d) the Lender has not acquired the conversion right entitling it to
acquire common shares of the Borrower as a result of, and will not
itself engage in, any "directed selling efforts' (as defined in
Regulation S) in the United States in respect of any of the common
shares of the Borrower which would include any activities undertaken
for the purpose of, or that could reasonably be expected to have the
effect of, conditioning the market in the United States for the resale
of any of the common shares of the Borrower, provided, however, that
the Lender may sell or otherwise dispose of any of the common shares of
the Borrower pursuant to registration of any of the common shares of
the Borrower pursuant to the 1933 Act and any applicable state
securities laws or under an exemption from such registration
requirements and as otherwise provided herein; and
(e) a legend may be placed on the certificates representing the common
shares of the Borrower to the effect that the Shares represented by
such certificates are subject to a Distribution Compliance Period and
may not be traded until the expiry of such except as permitted by
applicable securities legislation. The Purchaser hereby acknowledges
and agrees to the Company making a notation on its records or giving
instructions to the registrar and transfer agent of the Company in
order to implement the restrictions on transfer set forth and described
in this Agreement.
6. REPRESENTATIONS OF THE BORROWER. The Borrower represents and warrants that is
has full power and authority to issue the shares of common stock issuable for
the purpose of the conversion pursuant to Sections 3.1.(a), 3.1.(b) and 3.1.(c)
of the Credit Agreement and that the undertakings relating to the conversion are
legal, valid and binding obligations of the Borrower.
7. CONDITIONS PRECEDENT TO AMENDMENT. The Lender shall have no obligation to
amend the Credit Agreement by this Agreement unless the Lender has received:
(a) this Agreement duly executed by the Borrower and the
Guarantor; and
(b) a copy of the authorizing resolutions of the board of
directors of the Borrower, authorizing the execution and
delivery of this Agreement, together with any replacements,
confirmations, amendments, supplements, extensions or renewals
to or of the Security as may be required by the Lender, all in
form and content satisfactory to the Lender and its counsel.
8. GOVERNING LAW. This Agreement shall be construed, performed and enforced in
accordance with, and governed by, the internal laws of Switzerland, without
giving effect to the principles of conflict of law thereof.
9. CONSENT TO JURISDICTION. (1) Each of the parties hereto hereby irrevocably
attorns to the exclusive jurisdiction of the Courts of Herisau (Switzerland) in
any action or proceeding arising
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to this Agreement, in modification of its Section 9.8., the February 28, 2003
Agreement and the Credit Agreement. The Borrower agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by Law.
(2) Nothing in this Section 9(1) shall affect the right of the Lender
to serve legal process in any other manner permitted by Law or affect the right
of the Lender to bring any action or proceeding against the Borrower or its
property in the courts of other jurisdictions.
10. ENGLISH VERSION. 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.
11. SEVERABILITY. If one or more provisions of this Agreement is or becomes
invalid or unenforceable in whole or in part in any jurisdiction, 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.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors, heirs,
executors, administrators, legal representatives and assigns.
13. FULL FORCE AND EFFECT. All of the other provisions of the Credit Agreement
shall continue in full force and effect and shall not be modified hereby.
14. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
will be an original and all of which will constitute the same document.
15. FACSIMILE. The parties hereto agree that this Agreement may be transmitted
by facsimile or such similar device and that the reproduction of signatures by
facsimile or such similar device will be treated as binding as if originals and
each party hereto undertakes to provide each and every other party hereto with a
copy of this Agreement bearing original signatures forthwith upon demand.
THE LENDER: THE BORROWER:
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MFC MERCHANT BANK S.A. MYMETICS CORPORATION
Per: Per:
---------------------------- ----------------------------
Authorized Signatory Authorized Signatory
Per: Per:
---------------------------- ----------------------------
Authorized Signatory Authorized Signatory
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THE GUARANTOR:
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MFC BANCORP LTD.
Per:
----------------------------
Authorized Signatory
Per:
----------------------------
Authorized Signatory
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